JATINDER SINGH vs STATE OF JAMMU & KASHMIR AND OTHERS

Through the medium of instant petition, the petitioner is seeking a direction to the respondents to award him compensation of Rs.5,30,000/- for

electric burn injuries caused to him due to High Tension Electric Wire fallen on the wet ground of Govt. High School, Kotli Shah Daulla.

The facts as pleaded in the writ petition, are that petitioner was a student of 10th Class in Guru Nanak Academy, Kotli Shah Daula and on the

fateful day of 08.05.2001 when he was playing with the children of his age group in the ground of Govt. High School at about 4.00 PM, he came in

contact with live electric wire fallen on the wet ground of the School. Some buffaloes were also there. It is contended that the boys while playing had

no knowledge of impending danger and while playing, the petitioner, and the buffalos grazing in the ground, were caught in the electric circuit. This

resulted into death of five numbers of buffalos and petitioner got electrocuted with severe burn injuries. The petitioner was firstly admitted to Govt.

Hospital R.S.Pura and thereafter in Govt. Medical College Hospital on 09.05.2001 where he remained admitted up to 11.05.2001. The petitioner

thereafter got treatment under the care of Dr. Rakesh Saraf, Plastic and Burn Surgeon, Care „N‟ Cure Nursing Home, Trikuta Nagar, Jammu

upto 15.07.2001.Â

Learned counsel for the petitioner contends that the accident has happened due to negligence on the part of the Electric Department as the electric

poles of High Tension Line had fallen on the ground and wires were touching the wet ground since a day before, i.e., 07.05.2001. The Electric

Department had not taken any precautions or any efforts to repair the defected poles and the High Tension Line, which was touching the wet ground

of High School, Kotli Shah Daulla. It is further contended that due to severe burn injuries, petitioner has been made handicapped and has not been able

to attend the School properly besides has lost concentration of mind in his studies. The petitioner was in Class 8th when the accident took place. The

petitioner was hospitalized from 08.05.2001 to 15.07.2001 and his right hand fingers were got damaged. The petitioner has also lost of movement of

right arms partially and both feet fingers are also damaged in bending position.Â

Learned counsel for the petitioner further avers that due to severe injuries, life of the petitioner has been badly crippled in performing day-to-day

mundane activities and he has been going through acute depression of inferiority complex. It is further averred that apart from being in the hospital and

making expenses in his treatment, the petitioner has been suffering from pain and agony through psychological trauma, thus he deserves to be

adequately compensated. It is also contended that due to negligence and carelessness on the part of respondents in maintaining and rectifying the

electric wires, petitioner has become handicapped. He further contends that in terms of Section 33 of the J&K Electricity Act, 1997 (1940 AD), the

respondents were under obligation to conduct a statutory inquiry. However, respondents did not prefer to hold inquiry.

They have, therefore, not only committed breach of statutory provisions, but they are also liable for tortious liability and petitioner deserves to be

compensated adequately. Learned counsel avers that petitioner has also filed representation to the Department claiming compensation but all in

vain.Â

Objections have been filed on behalf of respondents contending therein that as per official record sent to the Inspection Agency, the electrical

accident had occurred in the evening on 08th of May, 2001 in the school compound at Kotli Shah Daulla at about 5.00 pm. This accident also resulted

in the fatality of buffaloes, which were grazing there at that time. It is insisted that accident had occurred on 08.05.2001 but the petitioner has been

admitted in the Hospital on 09.05.2001. The respondents are in no way responsible as this was an occurrence, which took place due to own negligence

of the deceased and not of the respondents. It is maintained that the compensation is not expected to be a windfall for the victim. Statutory provisions

clearly indicate that the compensation must be „just‟ and it cannot be a bonanza, it should be reasonable and fair. This mandate is so laid down by

the Apex Court in Division Controller, KSRTC v. Mahadeva Shetty 2003 AIR SCW 3797.Â

Heard learned counsel appearing for parties and perused the file.

A perusal of objections reveals that the respondents have admitted that the petitioner had received electric shock because of falling of service line

due to windstorm on 7th of May, 2001 and that the said accident had taken place on 08.05.2001 at about 5.00 PM. However, their stand is that the

said accident had taken place due to the negligence of petitioner. As per the mandate laid down by the Apex Court, the plea that there is no

negligence on the part of the respondents, is purely a question of fact that cannot be agitated by invoking extra ordinary writ jurisdiction of this

Court. Â

Although the stand of respondents is that the said accident was the result of negligence on the part of petitioner, however, in reply to paragraphs

Nos.3, 4 and 5 of the writ petition, it is averred that on the preceding day of accident, due to windstorm ST Pole got broken, meaning thereby the

respondents admit that the service line fell down, as a result whereof wires were touching the wet ground due to wind storm a day earlier when the

petitioner had received the electric shock. Once the respondents admit that the said service line had fallen a day earlier due to windstorm, it was,

therefore, the duty of respondents to defuse the transmission of electricity in order to prevent any mis-happening and to engage men and machinery/

field staff to repair the said service line which certainly was posing looming large threat to the safety of public. However, it seems the officials of

Electric Department did not bother to check the electricity supply lines after the storm was over nor did they make any effort to defuse the

transmission of electricity, and on the very next day this unfortunate accident had occurred. Thus, it cannot be heard saying that the aforesaid accident

was the result of negligence of petitioner, rather the same was the negligence of respondents, for which they cannot be allowed to escape from their

liability. Further, when the negligence is per se visible infringing Article 21 of the Constitution of India, relief claiming damage could be granted under

Article 226 of the Constitution of India.Â

There cannot be any gainsay on the count that the maintenance of electric supply is under the control of the respondents, therefore, they are equally

bound to ensure that the life of citizens is not put in jeopardy. While discharging the sovereign functions, a duty is cast on the State to take such steps

as are required for the safety of the people and, on their failure, they cannot escape the obligation to compensate a victim on the ground of immunity

claimed.

What is held by the Apex Court in the case of M.P. Electricity Board vs Shail Kumar, AIR 2002 SC 551, while dismissing the appeal filed by the

Board, is profitable to be reproduced hereunder:

“7. It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the

energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it the primary liability to compensate the sufferer is

that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the

managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not

remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody

committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the

managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the

public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to

chalk out measures to prevent such mishaps.â€​

“14. The Privy Council has observed in Quebec Railway, Light Heat and Power Company Limited v. Vandry and Ors. {1920 Law Reports Appeal

Cases 662} that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the

cables were disrupted on account of a violent wind and high tension current found it sway through the low tension cable into the premise of the

respondents was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the

liability of the Board regarding the live wire lying on the road.

In W.B. State Electricity Board v. Sachin Banerjee the Electricity Board adopted a defence that electric lines were illegally hooked for pilferage

purposes. This Court said that the Board cannot be held to be negligent on the said fact situation but the question of strict liability was not taken up in

that case.â€​

A Coordinate Bench of this Court at Srinagar Wing in State of J&K vs Mst Zoomi, 2008 (1) SLJ 414, while dealing with similar controversy, has

held as under:

“5. Applying definitions to the facts of the instant case, it is quite evident that the appellants department of PDD and its field staff have failed to

exercise their duties in removing illegally carried electric lines over the kicker poles and the existing live trees. They have committed the breach of

their duty so cannot avoid payment of damages to the respondent/widow.

The field staff or their superiors should have timely taken action for stopping the illegality. No action on their part has resulted in electrocution of the

deceased and, therefore, appellants cannot be exonerated from their liability.â€​

Also, a Coordinate Bench of this Court in Sagar Chand vs State, 1999 KLJ 614, has held that when injury has been caused by the negligence of

employee of the Department, the State is responsible to make payment of compensation. In the said case both the children of the petitioners were

electrocuted because of the criminal negligence of the Lineman of the area.

In State of J&K vs Zarina Begum, AIR 2004 J&K 23, a Bench of this Court, while dismissing the appeal filed by the State, has held that the State

can be made liable to pay damages on account of negligence on the part of its officials. In the said case the victim died after coming into contact with

a broken live electric wire. It would be appropriate to reproduce the relevant part of the judgment hereunder:

“4. It be seen that so far as defendant No.4 is concerned, he is said to have obtained an illegal connection for obtaining electric energy and he had

not used proper transmission wire. It is not in dispute that the death of Mohd. Bashir did take place. Even if it be presumed that defendant No.4 had

obtained illegal connection, the fact will still remain that the officials of the State defendant No.3 were guilty of not checking the illegal connection and

merely because the said illegal connection was taken by defendant No.4 would be of no consequence.â€​

While dismissing the appeal filed by the State, the same view was taken in case, titled as State vs Altaf Ahmad Ganai, 2010 (4) JKJ 116. In the

said case one arm and one leg of the victim had to be amputated because of electrocution.

In Ramesh Singh Pawar vs M.P.E.B., AIR 2005 MP 2, the son of petitioner came in contact with live electric wire which was hanging from the

pole, as a result of which he suffered electric shock and died on the spot. While allowing the petition, what is observed by the learned Judge is

reproduced hereunder:

“16. Considering the totality of the facts and circumstances of the case, in the backdrop of discussion made hereinabove and keeping in view the

specific findings recorded by the Supreme Court in the case of Shail Kumari and the observations made in paras 8, 9, 11 and 13 reproduced

hereinabove, there is no doubt that not only on the ground of negligence but on the principle of strict liability the Board is liable to pay compensation to

the petitioner.â€​

Therefore, in view of the above discussion, the present petition also deserves to be allowed.

Now the question arises for consideration is what quantum of compensation ought to have been allowed in favour of petitioner and by applying

what method. In view of any specific provision in such like matters for awarding compensation arising out of tortious liability, Schedule for

compensation under Motor Vehicles Act and the decisions of Apex Court would be of great help in arriving out what quantum of compensation ought

to be awarded in the present case.

As per record, when accident was taken place, petitioner was of 16 years of age. As per copy of Medical Certificate, issued by the Govt. Medical

College Hospital, Jammu, the petitioner has become disabled by his right hand and his permanent physical disability amounts to 20% of his right upper

limb. Since the petitioner was just 16 years of age at the time of accident, the best part of his life had yet to come. Therefore, the compensation to be

awarded should enable him to acquire something or to develop a lifestyle which will offset the pain, shock, frustration inconvenience and discomfort

arising out of disability, especially keeping in view the fact that in Indian society marrying a boy with disablement is a social problem and there is every

likelihood that the petitioner would not get a suitable companion/life partner in view of his 20% permanent disability.Â

In Shashendra Lahiri vs Unicef, 1998 ACJ 859, the victim had suffered several fractures in leg resulting in shortening of the leg by three inches.

The injured in the above case was 17 years of age. He was a student of B.Com. This shortening of leg resulted in permanent disability. He had

undergone bone-grafting and hospitalization for quite some time in different hospitals. An amount of Rs.33,000/- was allowed by the Claims Tribunal.

The amount was enhanced in appeal to the extent of Rs.58,000/. The Supreme Court of India awarded Rs.4 lacs in addition to Rs.58,000/- already

awarded. Interest at the rate of 12 percent per annum was also allowed from the date of claim till its payment.

This Court, having regard to all the relevant factors involved in the present case and the nature and extent of disability sustained by the petitioner

herein, his age at the time he suffered severe electric shock and discomfort arising out of disability, is of the considered view that the petitioner is

entitled to get the following amount as compensation:-

Expenditure on Medicine : 20,000/-

Expenditure on special Diet, Care Taker and conveyance : 20,000/-

Pain and suffering  : 30,000/-

Pecuniary and non-pecuniary losses, future prospects of life, loss of amenities of life and future medical treatment disability. : 50,000/-Â

Total    :                                         : 1,20,000/-

In the result, this writ petition is allowed by directing the respondents to pay a sum of rupees one lakh and twenty thousand with 6% interest from

the date of filing of the petition till its final realization. Let the whole amount be deposited with the Registrar (Judicial) of this Court within a period of

eight weeks from today. On deposit, the same be paid to the petitioner through account payee‟s cheque after proper verification and identification.

Disposed of as above along with connected MP(s).Â