State of Jammu & Kashmir & Ors. vs Munish Narayan Pradhan

Claim of compensation for Rs. three lacs attributable to the negligence of the State of Jammu and Kashmir and its functionaries in the Power

Development Department, was lodged by Munish Narayan Pradhan, a minor, by a suit. State Government and its functionaries were alleged not to

have taken requisite precautionary measures to ensure that the High Tension Electricity Wires do not cause any damage or loss. In short, the minor

alleges that because of the negligence and omission of the State and its functionaries in taking requisite precautionary measures in regard to High

Tension Wires, he suffered electric shock on 18031992 when he was playing with other children on the rooftop. Burn injuries were so severe that

right arm of the minor had to be amputated.

Service of notice under Section 80 of the Code of Civil Procedure did not yield any response from the State and its functionaries, hence the suit.

State and its functionaries urge that construction raised under the High Tension Wires was in gross violation of Municipal Laws, which construction

had been raised without taking permission from the State Authorities. The High Tension Lines were already in existence when the illegal

construction was raised by the residents of the area. It is alleged that Chairman, Cooperative Society, Udhampur, was also approached in regard

to the illegal construction of the building, but he did not stop the construction. Liability to pay compensation has been denied on the ground that

High Tension Lines are always laid after taking necessary precautions, and that defendants i.e., State and its functionaries, were not negligent.

Amount of compensation claimed by the minor has been objected to as excessive and exorbitant.

Learned Principal District Judge, Jammu, decreed the suit vide his judgment dated 27092004 for an amount of Rs. three lacs alongwith interest

@ 6% per annum from the date of institution of suit till realisation. Learned Principal District Judge, Jammu, the Trial Court, framed following

issues in the case:

Issues

Whether the plaintiff received an electric shock on 18.3.1992 and as a result of the same he sustained injury and finally lost his right arm? OPP

Whether the accident occurred due to the negligence of the defendants? OPP

In case of proof of issue No. 1 whether the amputation of arm was the direct cause of the accident? OPP

Whether the building of the area mentioned in the plaint came up without any permission, if so, what is its effect? OPD

Whether notice in terms of Sec.80 CPC is in accordance with law? OPP

If the issues are proved in favour of the plaintiff, what is the amount of liability that can be fixed upon the defendants? OPP

Although evidence was led by both the parties in the case, yet learned Principal District Judge, Jammu, has not given his findings on issues

framed in the case. He has, however, proceeded to decide the suit without recording any findings on the issues. This is lapse of learned Principal

District Judge, Jammu.

Order XX(Rule 5) of the Code of Civil Procedure, mandates the Courts to state its finding or decision, with the reasons therefor, upon each

separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit, in all those cases where issues have

been framed. For facility of reference Order XX (Rule 5) is reproduced hereunder:

Order XX (Rule 5) ""Court to state its decision on each issue

In suits in which issues have been framed, the Courts shall state its findings or decision, with the reasons therefor, upon each separate issue, unless

the finding upon any one or more of the issue is sufficient for the decision of the suit.

The suit instituted in 1992, cannot, in my opinion, be ordered to be remanded to the Trial Court for correcting the lapse, particularly when the

learned Principal District Judge, Jammu, has referred to the statements of witnesses, produced by the parties, in his judgment.

Being an Appellate Court, I permitted the parties to refer to the evidence led by them, for recording findings on the issues framed in the case, so

that the omission of the learned Trial Court to record findings on the issues is supplied by the Appellate Court.

Learned counsel for the parties relied on the statements reproduced by learned Principal District Judge, Jammu, in his judgment. I propose to

deal with issues framed in the case as under:

Issue No. Whether the plaintiff received an electric shock on 18.3.1992

1; and as a result of the same he sustained injury and finally lost his right arm? OPP

Plaintiff, Munish Narayan Pradhan, who had elected to continue as a plaintiff on attaining majority, stated that a High Tension Wire of 11,000

KV was passing through the roof of the building of Cooperative Society. He received an electric shock when some other child, too, who is stated

to be son of a plumber, received electric shock. It is stated that electric wire was about 1/2 feet high from the roof. He states that he became

unconscious because of the electric shock. His face and back got burnt because of the electric shock and his right arm had to be amputated from

shoulder because the damage to the arm was excessive. He stated that he wanted to join Army and his whole life has been spoiled. He further

states that the loss and damage suffered by him cannot be compensated in terms of money. He has accused respondents of not taking proper care.

In crossexamination, he has stated that he did not know since when the High Tension Wire was passing through the rooftop. He remained in

Udhampur for 15 years. He did his graduation in 2001 and is searching for a job. PW Ashok Kumar states that his quarter is situated near the

Cooperative Bank. He heard hue and cry from the rooftop of the Cooperative building and on going there, he found Munish Narayan, minor, in

unconscious condition. He further states that another boy, too, had been injured. Regarding the position of the electric wire, he states that it was

about 2 to 21/2 feet above the rooftop. He came to know after about 1015 days that the arm of the plaintiff had been amputated. Dr. Dara Singh,

Assistant Professor, Orthopaedic, in Medical College, Jammu, has proved the injuries received by the plaintiff because of electric shock and has

admitted that during his treatment, plaintiffs right arm was amputated from shoulder. He has admitted the records produced in the case to be that of

the hospital. Anup Kumar and Vijay Kumar are the Record Kepeer and Incharge of records respectively, who have produced the relevant record.

Dr. Pushp Gupta is the Assistant Surgeon in Government Hospital, Udhampur, who has proved the admission of the plaintiff/respondent on 18th

March, 1992 at 12.37 p.m. He testifies that the case was of electric burns and the plaintiff was having injuries on right hand, chest left side, right

arm and left shoulder. The doctor states that bones were visible from the right hand because the flesh had been burnt. Subhash Chander, another

witness of the plaintiff, states that it was Holi on 18th March, 1992, when children were playing on the roof top. He states that children received

electric shock through the electric wire. He went on spot and saw plaintiff and one Rajesh in unconscious condition. Oma Pradhan and Satya

Pradhan have supported the case of the plaintiff. Both these witnesses state that Munish remained in hospital from March 1992 to May 1992. In

order to save the life of minor, the doctor amputated his right arm. The mother of the plaintiff states that an amount of Rs.30,000/ to Rs.40,000/

was spent on the treatment of her son. It has been specifically stated by the mother that the accident has occurred because of the negligence of the

Electric Department. The defendants/appellants produced Yudhveer Gupta, AEE, who states that electric wires exist where the accident took

place. He states that illegal construction was started and AEE gave notice to stop the illegal construction. He further states that he was transferred

in 1993. He states that the construction of the building was illegal. He further submits that High Tension Wire was of 11 KV. According to his

expert knowledge, a person could receive electric shock, if he comes inside an area of 17/18 feet of the Wire. Bansi Lal Thappa is another witness

of the appellants, who states that he was posted as AEE in 1992 in Udhampur when a notice regarding raising of illegal construction was given to

the concerned and a copy whereof was also given to SHO concerned Police Station with the request to stop illegal construction. In

crossexamination, this witness admits that no copy of notice has been retained and no proceedings were conducted by them to stop the

construction of the building. He states that he cannot give the height of the Cooperative building. He, however, submits that the High Tension Wire

is 20/22 feet above the ground.

Perusal of the evidence led by the parties, as mentioned hereinabove, proves the accident and the injuries received by the minor because of

shock from the electric wires. Even the witnesses of the appellants/defendants have admitted the accident. Dr. Dara Singh has specifically proved

from his testimony and also on the basis of the records of the hospital that the right arm of minor was amputated.

In view of the evidence of the parties and the admission of the witnesses of the defendants, I hold that Issue No. 1 stands proved by the

plaintiff/respondent. This Issue is accordingly decided in favour of plain tiff/respondent and against defendants/appellants.

Issue No. Whether the accident occurred due to the negligence of the 2: defendants? OPP

The witnesses of the defendants/appellants have admitted that illegal construction was raised in the area where High Tension Wires had been

laid. The witnesses further stated that a notice had been issued for stopping the illegal construction. But thereafter, nothing appears to have been

done by the defendants/appellants in stopping the said illegal construction or taking such measures as provided under the Electricity Act and Rules

framed thereunder. Defendants have omitted to discharge their functions in stopping illegal construction under High Tension Electric Wires. Action

under the J&K Electricity Act and rules framed thereunder, has not been taken to prevent construction which was likely to cause loss, damage and

injury to the person and property of the citizens.

In view of the admission of defendants/appellants that no remedial measures were taken by the State and its functionaries to stop illegal

construction and ensure its demolition, I am left with no option except to hold that the accident occurred because of the negligence of the

defendants/appellants, who were enjoined under law to ensure that no construction is raised under the High Tension Wires. Issue No. 2 is, thus,

held proved by the plaintiff. It is decided in favour of the plaintiff/respondent and against the defendants/appellants.

Issue No. In case of proof of issue No.1 whether the amputation of arm

3: was the direct cause of the accident? OPP

In view of the statements of Dr. Dara Singh, Assistant Professor, Orthopaedic, Medical College, Jammu, and Dr. Pushp Gupta, Assistant

Surgeon in Government Hospital, Udhampur, and the medical records, and in the absence of any evidence produced by the defendants/appellants

to the contrary, I hold that the amputation of right arm of the plaintiff was direct cause of the accident. I, therefore, decide Issue No. 3 in favour of

the plaintiff/respondent and against the defendants/appellants.

Issue No. Whether the building of the area mentioned in the plaint came 4: up without any permission., if so. what is its effect? OPD

The defendants/appellants have not led any evidence in support of this Issue except oral evidence. Documentary evidence, though alleged to

be in existence, has not been produced by the defendants/appellants. In this view of the matter, I decide Issue No. 4 against the

defendants/appellants.

Issue No. Whether notice in terms of Sec.80 CPC is in accordance with 5: law? OPP

During the Course of hearing, no defect was pointed out in the notice, which even otherwise, I have found, does not suffer from any error. This

issue is, therefore, decided in favour of the plaintiff/respondent and against the defendants/appellants.

Issue No. If the issues are proved in favour of the plaintiff, what is the

6: amount of liability that can be fixed upon the defendants? OPP

While fixing the amount of compensation payable to a victim of an accident, damages are required to be assessed separately as Pecuniary

Damages and Special Damages. Pecuniary Damages are those, which the victim has usually incurred and which are capable of calculable in terms

of money. Whereas NonPecuniary Damages are those, which are incapable of being assessed by arithmetical calculation. Pecuniary Damages may

include the expenses incurred by a claimant for mental and physical shock, pain and suffering in present and in future, compensation for loss of

matters of life, damage for loss of expectation of life, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

In the present case, Pecuniary Damages, which appear from the statement of the mother of minor, are in the neighbourhood of Rs.40,000/.

Plaintiff has specifically claimed an amount of Rs. three lacs, which include pecuniary damages, on the basis of averments made in paragraph13 of

the plaint. He submits that he has been handicapped for the whole of his life and deprived of various amenities of life, and no amount of

compensation can compensate the loss sustained by him due to negligence and rashness of the defendants/appellants and their employees. He

further states in paragraph14 that he is maintaining a claim of Rs. three lacs as compensation although by way of the notice, he had called upon the

defendants/appellants to pay an amount of Rs. four lacs. In paragraph18 of the plaint, he avers that because of lack of funds in paying Court fee on

Rs. four lacs, he is maintaining the claim for an amount of Rs. three lacs only.

When the compensation is to be awarded for pain and suffering and loss of amenities of life, the special circumstances of the complainant have

to be taken into account including his age, the unusual deprivation he has suffered and its affect on his future life. Judgments cited by learned

counsel for both the sides permit a Court seized of the case to assess the compensation to take into account the factors pleaded before it in

determining the amount of compensation. Learned counsel for the respondent/plaintiff has cited Rekha v. Shri Travels and others, reported as

2003 ACJ 1559, where an amount of Rs. three lacs has been awarded for amputation of a right hand of a girl aged 15years.A/roza v. State of

J&K and another, reported as 2001 ACJ2081, a case decided by this Court, awards an amount of Rs.2,70,000/ in a case of electrocution in

respect of a minor girl. Nitin Walia v. Union of India and others, reported as 2001ACJ 462, is yet another case where a boy aged 3 years, whose

right arm was amputated, was paid an amount of Rs. five lacs as compensation. Numerous other judgments were cited by learned counsel for the

respondent/plaintiff to support the judgment of the Trial Court. It has been held in AIR 2003 Supreme Court Weekly 3797, (The divisional

Controller, K.S.R.T.C. v. Mahadeva Shetty and another) as under:

A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life

which has been curtailed because of physical handicap. The normal expectation of life is impaired.

In the present case, I find that the aim in life projected by the respondent/plaintiff to join Army has been scrapped and he has been forced,

because of negligence of the appellants/defendants, to lead the life of a disabled person. This disability, the plaintiff has to face through out his life.

In view of the facts and circumstances of the case, I am inclined to hold that an amount of Rs,3,00,000/ (Rs. three lacs only) claimed by the

plaintiff in the plaint, can be safely allowed as damages for the loss suffered by the minor. Issue No. 6 is, therefore, decided in favour of the

plaintiff/respondent by holding that the liability of the defendants/appellants would be Rs. three lacs.

In view of the discussion on the aforesaid issues, the suit of the plaintiff, thus, needs to be decreed. The conclusion arrived at by learned

Principal District Judge, Jammu, is, thus, upheld on the basis of findings recorded in this appeal.

This appeal, therefore, fails and is dismissed, with costs assessed at Rs.3,000/.

Registry to draw decree accordingly.

Respondent/Claimant has sought release of amount deposited by the AppellantInsurance Company in this Court pursuant to order dated

04042005, by filing CMP No. 45/2005.

In view of the dismissal of appeal of the Appellant, the respondent/claimant is entitled to the release of amount deposited in this Court. In order

to ensure that there is no misuse of amount, an amount of Rs. one lac shall be released by Registrar Judicial in favour of respondent/claimant, after

proper verification by the learned counsel appearing for him, and rest of the amount shall be kept in Fixed Deposit in the name of the

respondent/claimant, who will be entitled to draw interest thereon as and when need may arise. The respondent/claimant is given liberty to move

this Court in case he seeks to draw any amount out of the amount of Rs. two lacs deposited as aforesaid.

CMP No. 45/2005 also stands disposed of in the terms indicated above.

While parting, I would like to observe that State shall be at liberty to recover the amount decreed against it from the officers, who are found to

be remiss in not taking requisite measures because of which the State has been burdened to pay compensation and an innocent minor has been

compelled to lead the life of a disabled.

A copy of the judgment be sent to learned Principal District Judge, Jammu, for his guidance.