Abdul Ahad vs State of Jammu and Kashmir and Another

R.P. Sethi, J.—The plaintiff, a young boy of about 17/18 years studying in 10th class was electrocuted in village Aizam-a-bad (Mandi),

Tehsil Haveli of District Poonch and prays for the recovery of Rs. 3,00,000 on account of damages suffered. It is submitted by the plaintiff that on

5.6.1987, when he went to his field for digging maize crop which was sown by his father, he received severe electric shock from the pole installed

by the Electricity Department of the defendant State. It is submitted that the officers of the defendant had not taken proper precautions of all the

safety measures as a result of which the occurrence took place and in consequence of which the plaintiff was injured who fell unconscious and was

rushed to the Government Hospital, Poonch, where he remained admitted till July 21, 1987 and was thereafter referred to S.M.G.S. Hospital,

Jammu. The life of the plaintiff was saved, but his right arm and the left leg was amputated as the gangrene was alleged to have developed in the

injuries sustained. The plaintiff remained admitted in S.M.G.S. Hospital, Jammu till August 31, 1987.

He claims to be the only earning hand of his family on whom the nine members were depending. On account of this mishap in which the plaintiff

was seriously injured resulting in amputation of his right arm and left leg, he has been deprived of all the benefits and the virtues of life to which an

ordinary man is entitled or enjoys.

In the written statement filed on behalf of defendants, the occurrence is not disputed, but it is submitted that the suit in the present form was not

maintainable. It is admitted that an 11 KV line passes through the land of one Abdul Rashid where an electric pole is installed. The said line has

been laid down in the year 1977 according to the standards prescribed in the Electricity Act observing all the safety measures/precautions required

for the laying of such lines.

It is further submitted that the Noccurrence took place on account of mischief played by the plaintiff. After the occurrence, the departmental

staff is alleged to have immediately inspected the site of the accident and found that the charged line was intact and there were some burnt hair

which could be spotted on the line and there were also foot prints of the child on the pole which revealed that the plaintiff had climbed on the pole

and while reaching at the top of the pole, his head touched the 11 KV line resulting in the injuries. It is submitted that the matter was reported

besides others to the Inspection Agency of the department which conducted an independent enquiry and came to the conclusion that the accident

took place due to the climbing of Abdul Ahad on the pole who received flash from 11 KV HT line and not due to any fault of the department.

It is submitted that the plaintiff has been employed by the State Government and is getting about Rs. 900/- per month which is likely to be

increased with the span of service and is not entitled to the amount claimed by him in the suit. Notice u/s 80 of CPC has also abated.

On the pleadings of the parties, the following issues were framed on 18.5.1989:

(1) Whether the plaintiff sustained injuries on 5.6.1987 due to the negligence of the defendants? OPP

(2) In case issue No. 1 is proved in affirmative, whether the defendants are liable to pay damages to the plaintiff, and if so, to what extent? OPP

(3) Relief. OPP

In support of his case, the plaintiff has produced Kamal Sharma, Dr. B.A. Malik, Dr. Deedar Singh, Mohd. Yunas Khan, Gani Joo, Pir Nazeer

Hussain, Gulam Ahmed and Abdul Rashid as his witnesses. The plaintiff has also appeared as his own witness in support of his case.

In rebuttal the defendants have produced Ashok Kumar Gupta, Junior Engineer, S.S. Sambyal, Executive Engineer and Kuldeep Uppal,

Section Officer.

The plaintiff has also produced the discharge slip of District Hospital, Poonch, Exh. A, mark B, besides copy of the F.I.R.

Kamal Sharma, Record Keeper, PW, has produced the certificate from the requisite record of the S.M.G.S. Hospital, Jammu. According to

this record, the plaintiff was admitted in Ward No. 11 of the hospital on August 13, 1987.

Dr. B.A. Malik, Surgeon Specialist, PW, has deposed that he knew the plaintiff personally and had examined him when he was admitted in the

hospital with 40 per cent burn injuries and was in shock and he later on developed anuria. The plaintiff developed gangrene on the right upper limb

and amputation was done by the witness to save his life. Left leg and right arm of the plaintiff were amputated and when gangrene developed in the

left leg and right arm, he was referred to S.M.G.S. Hospital, Jammu. He has proved the certificate Annexure A attached with the plaint.

Dr. Deedar Singh, Associate Professor, Medical College, Jammu, has deposed that the plaintiff was admitted in the S.M.G.S. Hospital,

Jammu, on August 13, 1987 for treatment of electric burn injuries and was discharged on August 31, 1987. As per discharge certificate, the right

upper limb of the body was amputated on account of burn injuries. His left leg was also amputated.

In cross-examination, the witness has deposed that the injuries were possible to be caused if a person climbs on an electric pole and touches

live wire.

Mohd. Yunas Khan, PW, has deposed that he was a patwari posted in patwar halqa Aizam-a-bad on June 5, 1987 and had obtained a report

from the chowkidar which he entered in the Daily Register.

In cross-examination, the witness has stated that he has no personal knowledge regarding the actual occurrence.

Gani Joo, PW, has deposed that his land was adjacent to the land of the plaintiff in village Hatholi where in the month of June, 1987 he was

working and he saw the plaintiff in his field. When the plaintiff reached near the electric pole installed by the Electricity Department, he was

electrocuted. The witness and others saved the plaintiff and took him to the hospital at Mandi and thereafter to Poonch. He has submitted that the

occurrence took place on account of rashness and negligence of the Electric Department of the defendant State. The plaintiff according to the

witness was 15/16 years of age at the time of occurrence. His right arm and left leg have been amputated. The plaintiff is not in a position to carry

on any vocation or business.

In cross-examination the witness has stated that he was not aware whether the plaintiff had been offered or provided a job by the defendants.

The electric pole was installed on the boundary line of the field of the plaintiff. The electric wire was not lying in the field, but touching the electric

pole. He has categorically denied the suggestion of the plaintiff climbing the pole.

Pir Nazeer Hussain, PW, has deposed that he heard the noise on June 5, 1987 and reached the spot where the plaintiff had been electrocuted

with an electric pole installed by the defendant State. He has stated that the monthly income of the plaintiff was Rs. 2,000/- to Rs. 2,200/- per

month. He submitted that a sum of Rs, 9,000/- was advanced by him to the father of the plaintiff for plaintiff's treatment. One arm and one leg of

the plaintiff had been amputated on account of injuries sustained.

In cross-examination, the witness has stated that his shop is about one jarib from the place of occurrence. About 50/60 people reached the

spot almost simultaneously. According to him, upper part of the body of the plaintiff including his two arms were touching the pole at the time when

he reached there. He denied the suggestion that the plaintiff had climbed the electric pole and had touched the electric live wire as a result of which

he met with the accident.

Gulam Ahmed, PW, has stated that he rescued the plaintiff with the help of wooden piece after he was electrocuted. The plaintiff had become

unconscious and his one arm and one leg were damaged. The plaintiff was removed to Mandi hospital and, thereafter, to District Hospital, Poonch.

Before the accident, the plaintiff was studying and doing shop business in Mandi Bazar and his family was dependent upon him. In order to meet

the expenses of treatment of the plaintiff, his father sold 12 kanals of land which the witness purchased for Rs. 45,000/-. He has further stated that

the income of the injured before the accident was about Rs. 1,500/- to Rs. 1,600/- per month. The occurrence took place on account of the

negligence of the Electricity Department of the defendant State.

In cross-examination, the witness has stated that the plaintiff was about 14/15 years of age at the time of accident and was studying in 10th

class. He has stated that the plaintiff was not paying any income tax. He has denied the suggestion that the plaintiff had climbed the pole and

voluntarily touched the live electric wire.

Abdul Rashid, PW, who is the father of the plaintiff states that on hearing the noise, he went to the spot and found his son lying unconscious,

who was lifted and brought to Government Hospital, Mandi and later to District Hospital, Poonch. After 3/4 days, when the plaintiff was still

unconscious, his right arm was amputated which had been damaged on account of the occurrence. The plaintiff stayed in the District Hospital,

Poonch for 1V4 months whereafter he was sent to S.M.G.S. Hospital, Jammu, where he remained admitted for about 28/29 days. In Jammu

hospital, the plaintiff's left leg was also amputated. Before the occurrence, the plaintiff was studying and also running a shop wherefrom he was

earning Rs. 2,000/-per month and the family was dependent upon him. His marriage had been arranged before the occurrence, but after the

accident, his in-laws refused to marry their daughter to him on account of the permanent disability caused to the plaintiff. The plaintiff is not in a

position to do any work now. The witness submits that he had to sell his land for the treatment of the plaintiff and spent about Rs. 55,000/- for his

treatment. He alleged to have borrowed Rs. 9,000/- from the bank. The shop which the plaintiff was running was closed after the occurrence.

In cross-examination, the witness has stated that the electric pole had been installed on the land 4/5 years before the date of occurrence. The

electric pole is 20/25 ft. high. The electric wires were hanging at the top of the pole. The pole was an iron pole and not in a round shape. He has

stated that his son was engaged with the daughter of Ghulam Mohd. Lone, r/o Chhamber Kaneri, Tehsil Haveli.

Abdul Ahad plaintiff has stated that on 5.6.1987, he had gone to his field in connection with agricultural pursuits for digging the maize. High

power tension wire has been installed in his land where a pole was installed to which he was attracted. He fell unconscious and remained as such

for eight days. When he regained consciousness, he found himself in Government Hospital at Poonch and by the time his right arm had been

amputated. It is further stated by the plaintiff that he was sent to Jammu hospital where his left leg was also amputated. Before the occurrence, he

claims to be studying in school in 10th class and also running a grocery shop in Mandi and was earning Rs. 2,200/- to Rs. 2,400/- per month. The

income was used for his family. On account of the occurrence, he could not appear in the examination even though he was interested in further

studies. After amputation of his right arm and left leg, he was not in a position to walk normally and work effectively nor can he take part in sports

smoothly. He was engaged before the occurrence, but his would be in-laws refused to marry their daughter after the accident. He has further

stated that his left arm is also weakened and one of the fingers of the left hand has also been amputated. The occurrence did not take place on

account of any of his faults.

In cross-examination, he has submitted that there are number of poles installed near the place of occurrence. The maize crop had been sown at

a distance of about four metres away from the pole. He has denied the suggestion that he had come in contact with the live wire. He categorically

stated that he was pulled towards the pole from the distance of about four metres. He has further stated that he had invested Rs. 10,000/- to Rs.

15,000/- in the shop.

Ashok Kumar Gupta, Junior Engineer, DW, has stated that he was posted as Junior Engineer in the Inspection Division of the Electricity

Department in the year 1987. The area of Poonch was within his jurisdiction. He had made a spot inspection on 13.8.1987 in connection with the

electrocution of the plaintiff and submitted his report to the Executive Engineer. He has proved the copy of report EXP-AK.

In cross-examination the witness has stated that the plaintiff was in the hospital at the time the witness made inspection. He was told on spot

that the plaintiff was in Jammu hospital. S.S. Sambyal, Executive Engineer, DW, has stated that he was posted as Executive Engineer in Poonch in

the year 1987 and in connection with the accident of the plaintiff, he had gone to the spot on June 14, 1987. He checked the pole by touching it

and found it to be in order. He also went to the house of the plaintiff and made enquiries from his mother. On humanitarian grounds the plaintiff was

adjusted as orderly in the Poonch Division and is being paid Rs. 900 per month as salary.

In cross-examination the witness stated that the Development Commissioner had passed the appointment order asking him to withdraw this

case failing which his appointment order was threatened to be terminated.

Kuldeep Uppal, Section Officer, DW, has stated that he was posted in Poonch as Section Officer in the year 1986 and he visited the place of

accident where he found the electric pole to be in order.

In cross-examination the witness has stated that he went to the spot and checked the pole with his naked eyes and found the same to be

standing. The injured at that time was in the hospital and he had not seen any foot prints on the pole (Sic.) which were not present on the pole

nearby. The prints observed by him looked like the prints of mud.

I have heard the learned Counsel for the parties and perused the record.

Issue No. 1

The occurrence of June 5, 1987 in which the plaintiff sustained injuries as a result of which his left leg and right arm were amputated is admitted

and proved by positive evidence led in the case. The only question to be determined is as to whether the plaintiff sustained the injuries due to the

negligence of the defendants or voluntarily. It is not disputed that the electric pole was installed by the employees of the defendant State employed

and bound by the provisions of Electricity Act, rules made and the orders issued thereunder. The law casts a duty upon the Electricity Department

of the defendant State to properly maintain the electric installation and lines carrying the electric energy. The failure on the part of Electricity

Department to properly maintain the lines carrying the electrical energy makes them liable to compensate, if any injury is caused to a citizen

consequently. Wherever the negligence in maintaining the electric installations is denied, a legal obligation is cast upon the department to rebut the

presumption with positive evidence to show that they had been maintaining the power supply system in accordance with the standards accepted

and the provisions of law forming part of the Electricity Act and the rules made thereunder. As and when it is proved that a citizen was

electrocuted from a live wire hanging down from an electric pole, there is a presumption of fact that there was negligence of proper care and

caution on the part of Electricity Department entrusted with the job of managing and controlling the power supply system. The maxim res ipsa

loquitur is a principle which aids the court in deciding as to the stage at which the onus shifts from one side to the other. Where a particular state of

affair is shown to be under the management of a department or their servants and the accident takes place which in the ordinary course of things

would not happen, it affords reasonable evidence in the absence of explanation by the defendant that the accident arose from want of care.

Winfield in his famous Treatise on Tort has mentioned two requirements to attract the above principle. They are (i) that the 'thing' causing the

damage be under the control of the defendant or his servants, and (ii) that the accident must be such as would not in the ordinary course of things

have happened without negligence.

This principle has been approved and recognised by the Supreme Court of India in SyadAkbar v. State of Karnataka 1980 ACJ 38 wherein it

was held: ""The rule of res ipsa loquitur in reality belongs to the Law of Torts. Where negligence is in issue, the peculiar circumstances constituting

the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as

the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no

reasonable explanation as to the cause is coming forth from the defendant. The event or accident must be of a kind which does not happen in the

ordinary course of things, if those who have the management and control use due care. Further the event which caused the accident must be within

the defendant's control. The reason for this second requirement is that where the defendant had control of the thing which caused the injury, he is in

a better position than the plaintiff to explain how the accident occurred."" Testing on the touchstone of the principle laid down by the renowned

jurists of English courts and the Supreme Court, it is established that the initial burden of proof stand discharged by the plaintiff who has led

positive evidence to prove that he was electrocuted from the live wire which had fallen on the ground from the pole installed by the Electricity

Department. There is no evidence in rebuttal produced by the defendants. This issue is accordingly decided in favour of the plaintiff and against the

defendants.

Issue No. 2

The learned Counsel appearing for the defendants has not referred to any provision of law or the pronouncement of the court to show that

after the proof of issue No. 1 in favour of the plaintiff, the defendants are not liable to pay the damages. The only question to be determined in this

case is the extent of .damages to be paid to the plaintiff who has suffered the loss of his two vital limbs of the body and has been rendered useless

entity, deprived of all the luxurious facilities and amenities of a life available to a common man. There cannot be any exact or uniform rule of

measuring the value of the loss suffered or the extent of damages by any precise mathematical calculations. Such an amount can be calculated by

reference to the facts and peculiar circumstances of each case. The courts are not influenced by the circumstances which rest in speculation or

fancy, though conjecture to some extent is inevitable. [See C.K. Subramania Iyer v. T. Kunhi Kuttan Nair 1970 ACJ 110 . In British Transport

Commission v. Gourley (1955) 3 AllER 796 it was held:

The general principle on which damages are assessed is not in doubt. A successful plaintiff is entitled to have awarded to him such a sum as will

make good to him the financial loss which he has suffered, as a result of the wrong done to him for which the defendant is responsible...Such

damages can only be an estimate, often a very rough estimate, of the present value of his prospective loss.

The compensation generally means what a fair minded common man is called on to do for a plaintiff who is reduced to a pitiable condition on

account of the injuries caused. The compensation will not be a sum to plumb the depths of his contrition, but that which would enable him to say

that he has done whatever money can do. The views of Lord Devlin were approved in Kerala State Electricity Board Vs. Kamalakshy Amma, .

After considering the various cases, the High Court of Kerala in Kerala State Electricity Board Vs. Kamalakshy Amma, held:

In working out the compensation, the court or Tribunal has wide discretion in the matter and in so doing and in awarding a 'fair' and 'just'

compensation, or a 'reasonable' one, it may take into consideration the prevailing purchasing power of rupee in order to see that the awards must

keep pace with the growing inflation. This is one of the factors to be borne in mind to enable the Tribunal or court to be just, real and reasonable in

all the circumstances of the case. Sukumaran, J. in Kunjamma v. Geeverghese 1984 KLT 128 at pp 133 and 134, paras 24 to 27, had occasion

to deal with this aspect. The Delhi High Court in Jaimal Singh v. Jawala Devi 1976 ACJ 207 pointed out that 'in assessing damages in fatal

accident cases, compensation should be calculated so as to allow for the increasing cost in a depreciating currency...and a Judge cannot shut his

eyes to the inflationary trend and the fact that the rupee has considerably gone down in value'. Parliament has given legislative recognition to this

phenomenon when it amended the Land Acquisition Act, 1894, by Act 69 of 1984. In the statement of objects and reasons for the amendment the

depletion of the rupee value is mentioned as one of the reasons for providing newer counts of compensation for the lands acquired. We are of the

view that fall in the rupee value is a factor which courts can justifiably take into account in assessing damages in fatal accident cases.

In the instant case, at the time of accident, the age of the plaintiff was about 16/17 years and he is shown to be earning about Rs. 2,000/- per

month from the shop being run by him. The defendants have provided the plaintiff with a job wherefrom he is getting Rs. 900/- per month. The

claim of the plaintiff regarding his income being Rs. 2,000/- may be excessive, but there is no evidence produced in rebuttal. Keeping in view the

facts and circumstances of the case, I have come to the conclusion that the plaintiff at that age must have a capacity of earning Rs. 1,500/- per

month only which was liable to be increased with the passage of time and devaluation of the value of the currency. After the plaintiff has been

provided with a job of Rs. 900/-, which is to increase with the passage of time, I have come to the conclusion that the plaintiff has suffered a loss

of about Rs. 600/- per month. The expectancy of the age till the plaintiff could earn can be stretched to 58 years which is normal age of retirement

for a civil servant. The plaintiff is, therefore, entitled to be compensated for a period of 42 years. However, to make the matter simple I have opted

to apply the principle of multiplier for a period of 40 years only. In this way, the plaintiff is entitled to a claim of Rs. 2,88,000 (two lakh and eighty-

eight thousand only). The plaintiff is also proved to have suffered the mental agony and torture which cannot be measured in terms of money, but I

assess the same at Rs. 12,000/- (twelve thousand only). The plaintiff has also stated that he has spent about Rs. 45,000/- (forty-five thousand

only) on his treatment, but has failed to prove the extent of exact expenditure. It is not disputed that the plaintiff remained admitted in Government

hospital and might have incurred an expenditure of about Rs. 5,000/-. The plaintiff is also entitled to a claim on account of mental torture, physical

pain and deprivation of the future facilities of life which could be assessed to be at least Rs. 25,000/- (twenty-five thousand only). In this way, the

plaintiff is entitled to the payment of Rs. 3,30,000/- (three lakh and thirty thousand only). However, as the plaintiff is to get a lump sum amount, I

have opted to deduct an amount of Rs. 80,000/-(eighty thousand only) on this count and I hold him entitled to the grant of Rs. 2,50,000 (two lakh

and fifty thousand only) on account of compensation and damages for the injuries sustained by him.

Issue No. 3

Accordingly a decree for the recovery of Rs. 2,50,000 (two lakh and fifty thousand only) is passed in favour of the plaintiff against the

defendants with costs. If the decretal amount is not paid to the plaintiff within the period of three months, he shall be entitled to recover the same

with interest at the rate of 12 per cent per annum from the date of decree till the realisation of the amount.

Let a decree be drawn accordingly.