H.P.S.E.B. and Others vs Master Hukam Chand

Surinder Singh, J.—The appellants felt aggrieved and dissatisfied by the judgment and decree passed by the learned trial Court, whereby the suit of the plaintiff-respondent was decreed to the tune of Rs. 6,75,640/- by adjusting rupees one lac already paid to him with costs and interest @ 7� % from the date of institution of the suit till its realisation.

The facts in brief can be stated thus. The respondent Master Hukam Chand aged about 9 years, was a school going child. On 27.4.2001, he had gone for grazing the cattle and to collect the fire words from the jungle. Around 11 a.m., when he was driving away his cattle, they went astray. When he reached near the electric pole of high tension line (HT lines) which was supported with the stay-wire, abutting to the path, while chasing the cattle, came in contact with the stay-wire it was having high voltage electric current and got electrocuted. His left arm was burnt and got badly damaged. His sister was nearby. She noticed the incident and rushed to her house and informed her mother.

The mother of the minor plaintiff alongwith other villagers reached the spot. Seeing the plaintiff in injured condition, picked up and took him to hospital at Shimla, where his father was working as Chowkidar. The plaintiff was attended by a doctor in Rippon hospital. After giving the first-aid, he was referred to the Indira Gandhi Medical College and Hospital, Shimla. He remained under treatment for about 27 days. His left arm amputated and the fingers of right hand were also damaged. After his discharge from the hospital, the minor plaintiff was required to be kept at Shimla for further treatment as out-door patient. In the opinion of the doctors, 90% permanent disability was suffered by the plaintiff.

The father of the plaintiff had represented to the Human Rights Commission, ultimately he filed a writ petition in the High Court. Vide order dated 14th May, 2003 passed in CWP No. 1095 of 2002, in view of the disputed facts projected by the appellant-Board, the plaintiff was advised to file a civil suit and the period, so long the matter remained pending in the Human Rights Commission as also in the writ, was held to be exempted u/s 14 of the Limitation act, which entitled the plaintiff to ask for exclusion of time from the period of limitation, as such, the instant suit was filed by the plaintiff through his father Satish Kumar, for the damages and recovery of Rs. 10 lacs for the injuries caused to the right hand of the plaintiff and total amputation of the left hand as also the expenses incurred on the treatment, besides pain and suffering.

The suit was resisted and contested by the defendant-appellants, They denied negligence as the pole and the stay wire of the HT lines was duly protected by the barbed wires, so that nobody climbs up the pole directly or through the stay-wire and also took up the defence that the aforesaid plaintiff was trying to climb up the pole through the stay wire and came into the magnetic, thus got electrocuted. The defendants appellants also took the preliminary objections of no cause of action, suppressed the material facts and also questioned the maintainability of filing the suit vis-�-vis took up the plea of estoppel. It was also averred that a sum of Rs. 5,000/- was paid by the Sub Divisional Magistrate, Arki, to the minor plaintiff and a sum of Rs. 1 lac was paid by the appellants themselves, which was not mentioned in the plaint.

In para-9 of the replication, the facts about the receipt of Rs. 5,000/- and Rs. 1 lac aforesaid have been admitted, rest of the paras were denied and even paras of the plaint were reiterated.

On the pleading of the parties, the following issues were framed:

Whether the accident in question took place due to some negligence on the part of the defendants as alleged? ...OPP.

If issue No. 1 is proved whether the plaintiff sustained serious injuries resulting in permanent disability as alleged and is entitled to compensation, if so, how much and from whom? ...OPP.

Whether the plaintiff himself was responsible for the occurrence of the accident as alleged, if so its effect? ...OPD.

Whether the plaintiff has no enforceable cause of action? ...OPD.

Whether the plaintiff has not come to the court with clean hands, if so its effect? ...OPD.

Whether the plaintiff is estopped to file the suit by his own acts and conduct and those of his father as alleged? ...OPD.

Relief.

The findings qua issues No. 1 and 2 were held in affirmative and on other issues in negative. Consequently, the suit was decreed as aforesaid, against which the present appeal has been filed, on the grounds that the learned trial Court did not appreciate the evidence on record in the right perspective and the amount of damages was assessed on the higher side and also that the ex-gratia amount paid was not adjusted and also that the multiplier method for assessing the compensation was not correct.

The findings on the negligence part are not disputed. The main stay of the arguments of the learned Counsel for the appellants Shri Trilok Jamwal is that the learned trial Court did not apply the proper multiplier and also the multiplicand in assessing the damages was on the higher side and further that 1/3rd amount should have been deducted for the personal maintenance out of the entire assessed income.

Contra, the learned Counsel for the plaintiff-respondent vehemently argued that the plaintiff at the time of alleged incident was 9 years of age. He completely lost his left arm and sustained grievous injuries on the right hand and other parts of the body. The pain and suffering which he suffered could not be compensated in terms of money. The amputation of the left arm and the fingers of the right hand were damaged, which made him to suffer the stock of his life. He lost his childhood and future prospectus of a good job in private or government sector and further that prospectus of good marriage with a girl of his choice has also diminished. He also argued that the respondent has been deprived of basic amenities of life right from his childhood and would face it even attaining his youth and also thereafter. It is also ventilated that further he has to remain dependant for help on someone throughout his life and that the plaintiff has suffered 90% permanent disability, which has effected his earnings, thus there is no question of deducting 1/3rd as alleged because the damages are claimed by him and not by dependants. Therefore, in these circumstances, the total amount of compensation awarded, is still looks very meagre.

I have given thoughtful consideration to the rival contentions carefully and thoughtfully gone through the evidence on record.

At the very outset, I would like to say that the main argument is focussed on inadequacy of the compensation.

In evidence affidavit, PWs 1 and 2, the parents of the minor plaintiff have supported the case as averred in the plaint. At the time of filing the present suit, the plaintiff was aged about 11 years and has been studying in sixth standard.

PW9 Dr. G.G.S. Chauhan, Head of Department of Plastic Surgery testified that the minor plaintiff remained admitted in the department of Plastic Surgery of Indira Gandhi Medical College and Hospital, Shimla w.e.f. 6.10.2001 to 24.10.2001. He proved his discharge certificates Exts.PW9/A and PW9/B to be correct and in conformity with the official record brought by him. He also stated that Master Hukam Chand was admitted in general surgery department in the said hospital from where he was referred for correction of post electrical burn deformities of right hand. During the course of his statement, he also examined the right hand of the injured plaintiff and deposed that it requires further surgery for improving the functioning as his left arm was totally disarticulated from the shoulder joint, therefore, he cannot be also fitted with an artificial limb. When the minor plaintiff was admitted in the hospital, he was having 15% electrical burn injuries with gangrene of left arm, which caused the amputation of his entire arm. Nothing material could be extracted from his cross-examination.

PW8 Dr. Dinesh Rana, an Orthopaedic Surgeon stated that the minor plaintiff was examined by the Board of Directors of DDU hospital, for the purpose of assessing the permanent disability suffered by him, due to his articulation of left shoulder joint. He was also one of the members of the Board. He categorically stated that the minor plaintiff suffered the injuries to the extent of 90% in relation to left upper limb. Certificate Ex.PG was issued, which has not been disputed in his cross-examination.

PW10 Dr. Subhash Negi, Professor and Incharge of the Surgery, posted in the Indira Gandhi Medical College and Hospital, Shimla also proved the discharge slips Ex.PW10/A and B when the total amputation of left arm was done as indoor patient in the hospital. In his opinion, the disability of the left arm was 100% functionally.

As against the aforesaid evidence, the learned trial Court keeping in view the age of the minor plaintiff rightly applied the multiplier of 18 and to arrive at a just and reasonable compensation, he took into account his earnings @ Rs. 100/- per day, which was being paid to the unskilled labour, thus it arrived at monthly figure of Rs. 3,000/- and the annual income at Rs. 36,000/-. Thus, by multiplying the multiplicand into multiplicand and also by adding Rs. 8,640.29 paise actual medical expenses, Rs. 5,000/- as expenses for attendant and Rs. 20,000/- for pain and suffering, the total of which came to Rs. 7,75,640/-. The learned trial Court deducted the amount of Rs. 1 lac, which was paid by the defendant-appellant and passed the decree to the tune of Rs. 6,75,640/- alongwith interest @ 7�%, to which the defendants-appellants claimed to be on quite higher side with no adequate reasons.

In my opinion, the above amount of compensation is not excessive for the reasons that at the time when the incident took place, the plaintiff-respondent was aged about 9 years, when the suit was filed, he was studying in sixth standard and was of 11 years. His father had to spent a lot to redress his grievance and to fight for the right of his minor child. Plaintiff lost his childhood due to amputation of his left arm and suffered acute pain and suffering. He had to suppress all the desires of his childhood which his playmates normally enjoyed and are usually remembered throughout life. Not only this, the plaintiff has suffered a personality defect and has become handicapped having 90% permanent disabilities. His psyche has totally shattered. He also lost the future prospectus to get employment in military or para-military service. Besides this, his future prospectus of marriage with a good looking girl has considerably diminished.

Looking at on these aspect and overall scenario, vis-a-vis the amount awarded by the learned trial Court (though on calculation it comes to Rs. 6,81,640/-) in my opinion, the amount of Rs. 6,75,640/- is not excessive. The learned trial Court took the reasonable view to arrive at the aforesaid figure and made the deduction of Rs. 1 lac earlier paid by the appellants, who are otherwise also responsible to maintain the electricity supply lines. Thus, no interference is required in appeal. Therefore, the appeal is dismissed with costs.

C.M.P. No. 147 of 2006.

In view of the dismissal of the main appeal, this application for stay also stands dismissed. The interim order granted on 14.3.2006 is vacated. However, it is directed that 50% of the decretal money shall be deposited against FDR in the account of the minor plaintiff initially for a period of five years and balance amount shall be realised to him as per law from time to time for meeting the expenditure incurred on his education and upkeep.