Gangi Magharani and ors. Vs. State and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/899185
SubjectCivil
CourtJammu and Kashmir High Court
Decided OnMar-05-2008
Judge J.P. Singh, J.
Reported in2008(2)JKJ48
AppellantGangi Magharani and ors.
RespondentState and ors.
DispositionPetition allowed
Cases Referred and Municipal Corporation of Delhi v. Subhagwanti
Excerpt:
- j.p. singh, j.1. after discharging his duties as cook with 213 transit camp jammu, on november 27, 1990, santa lal thapa was on his way home, along with his colleagues, on bicycles when at about 1700 hours he was hit by a rcc electric pole on his head near green belt area of gandhi nagar, jammu, which had fallen, all of a sudden, when the officials of the state electricity board, jammu, were in the process of its installation. the hit was so severe that santa lal thapa died instantaneously.2. his widow, two sons and daughter, filed this writ petition claiming an amount of rs. 4,00,000/- (rupees four lac only) as compensation for the death of their bread winner.3. opposing the relief claimed by the petitioners, the state respondents, though admitting that the electric pole being installed by the staff of the respondents had fallen all of a sudden because of some defect in the manufacture thereof, pleaded that the deceased had entered the restricted zone, ignoring the warnings sounded by the men at work on spot where electric pole was being installed and in that view of the matter, the respondents were not negligent in discharging their duties. it had further been pleaded by the respondents that the writ petition had raised disputed questions of fact, which could not be gone into by the high court.4. the respondents had denied their liability to pay compensation to the petitioners.5. the case of the petitioners and the objections of the respondents were considered by this court, but pending resolution of the factual issues by the civil court, the petitioners were held entitled to an amount of rs. 50,000/- by way of interim compensation, vide order dated december 07, 1998.6. this order, in so far as it holds the respondents liable to pay interim compensation of rs. 50,000/- on the basis of no fault liability has attained finality.7. it was during the pendency of enquiry by the civil court as to whether or not, the state was negligent in not taking requisite precautions and measures before and while carrying on the process of installation of electric pole in green belt area of gandhi nagar, jammu, that the matter came to this court once again and this time in civil revision no. 148/2002 by the respondents.8. this court modified its earlier order of december 07,1998, by providing that the additional district judge, jammu, would record his finding of fact on the disputed questions of fact as to whether employees of the respondents were negligent in the discharge of their duties during the course of erection of rcc pole and this finding of fact would be in the nature of a report to be submitted to this court for the decision of this writ petition afresh. earlier directions issued in owp no. 716/1994 for treating and trying the writ petition as civil suit, were accordingly withdrawn.9. learned additional district judge, jammu, has recorded the evidence on factual aspect of the case, though in ex-parte, because the respondents had opted to remain absent on number of occasions.10. dealing with the evidence produced by the petitioners, the law on the subject and relying on the judgments of hon'ble supreme court of india in 'municipal corporation of delhi v. susliila devi' reported as : [1999]2scr1198 , and municipal corporation of delhi v. subhagwanti reported as : [1966]3scr649 , learned additional district judge, jammu, came to the following conclusion:in the present case all the witnesses examined by the petitioners have in one voice deposed that santa lal thapa died when the electric pole installed by the employees of the respondents fell upon his head. these witnesses have further deposed that the said employees had not put any signboard or flags so as to warn the passersby of the danger of electric pole, which was being installed by them.looking to the facts of the case as coming out in the evidence led by the petitioners, it is apparent that the employees of the respondents were negligent in performing their duties while installing the electric pole. it is the negligence of the employees of the respondents that led to the death of santa lal thapa when the electric pole fell down upon his head. the employees of the respondents were not only negligent in the installation of the electricity pole but were equally negligent in not warning the passer-by that there exists danger of the pole falling down during its installation.11. in view of the facts and circumstances of the case as discussed above, it is apparent that the negligence of the employees of the respondents led to the death of santa lal thapa.12. on receipt of the report of learned additional district judge, jammu, the parties were allowed time to file their objections thereto. respondents have filed their objections, reiterating their earlier stand that despite sounding caution the deceased had barged in the area where installation activities were going on and in that view of the matter the state was not liable to compensate the petitioners for the death of santa lal thapa. they pleaded that sufficient opportunity had not been allowed to the state to cross-examine the witnesses and ex-parte proceedings taken against them were unwarranted.13. i have heard learned counsel for the parties and gone through the records. mrs. hakim, learned deputy advocate general, appearing for the respondents, had failed to point out from the records, as to how the ex-parte proceedings taken against the state were bad in law. the state was aware about the pendency of litigation and the order which this court had made on their revision petition directing the learned additional district judge, jammu, to record evidence and make requisite report thereafter. it is not the case of the respondents that they had no notice of the proceedings pending before learned additional district judge, jammu, and in that view of the matter, order passed by learned additional district judge, jammu, setting them ex-parte, when they had opted not to appear during the course of enquiry before the learned additional district judge, cannot be faulted because the respondents, despite their having known about the pendency of the proceedings before the additional district judge, jammu, had not come forward with any explanation of any type whatsoever justifying their absence from the proceedings.14. the objection of the state-respondents that ex-parte proceedings taken against them by the learned additional district judge, jammu, was unwarranted, is thus without any substance and is accordingly rejected.15. learned state counsel was unable to project any ground to justify respondents' case that the deceased had entered the prohibited area, ignoring the caution stated to have been sounded by those who were installing the rcc electric pole, in the absence of any evidence or material on records, on the basis whereof, it may be said that they had taken all requisite measures and precautions to protect the area where they were in the process of installing rcc electric pole.16. the respondents have not placed on records, an)' document(s) or other material on the basis whereof it may be said that they had taken any precautions before and during the process of the insinuation of rcc electric pole in green belt area of gandhi nagar jammu. the documents placed on records by the petitioners which have been issued by the officials of the respondents in the discharge of their official functions,, on the other hand, do admit that the rcc electric pole had fallen during the process of its installation, because of some defect in the manufacture thereof the court of enquiry findings, in which the respondents had been called upon to participate, too indicate that it was because of respondents' omission to take precautionary measures during the course of erection of rcc electric pole that the accident had occurred which had resulted in the death of santa lal thapa. the court of enquiry findings, for facility of reference, are reproduced herein below:(a) no. 9842008 civ ck, santa lal of 2131/camp had died at about 1715 hrs. on 27 nov., 1990 due to a fatal accident of falling of a rcc pole on him which was being erected by the workers of jkseb.(b) no army or civil employee of 213 t/camp is to be blamed for the death of no. 9842008 civ ck, santa lal.(c) the cause of the death has been an accident caused partly due to inadequate precautionary measures taken by jkseb workers who were erecting rcc pole which had fallen on the deceased on 27 november, 1990 at 1715 hrs.(d) it had been an accidental death and possibility of any foul-play as per eye witnesses is ruled out. sd/-presiding officer1/c. 16028klt. col. amarjit singh51 mc area.members. sd/-1. ic 35 175f capt. k.l. chhetri630 tpt coy asc. sd/-2. jc-180690 nb/sub yousuf ali213 t/camp. 17. i do no find any material on records on the basis whereof the findings recorded by learned additional district judge, jammu, on facts, may be disputed. there is enough evidence on record to justify the findings of the learned additional district judge, jammu.18. finding no material on records which may point out any infirmity in the report submitted by learned additional district judge, jammu, i have no other option except to accept it. accepting the report of learned additional district judge, jammu, it is accordingly held that santa lal thapa, had died because of the negligence of the respondents in not taking requisite precautions and sounding alert in the area, where the electricity board officials were in the process of installing a rcc electric pole, in green belt area of gandhi nagar, jammu, which had broken and fallen all of a sudden, on the head of santa lal thapa, resulting in his instantaneous death.19. the death of santa lal thapa, having taken place because of the negligence of the respondents, they are liable to compensate the petitioners for the death of their sole bread winner.)20. plea of the respondents that the petitioners should have filed a civil suit rather than writ petition for claiming damages on account of the negligence of the respondents is misconceived, because the writ petition would certainly he maintainable when a claim in public law for compensation for contravention of human rights and deprivation of fundamental rights had been set up. the claim of the petitioners, based on strict liability cannot thus be denied on the ground that a writ for such a claim was not an appropriate remedy.21. the deceased was 48 years of age at the time of his death. he is survived by his wife, two sons and a daughter.22. had santa lal thapa, died in a motor vehicular accident, his dependents would have been entitled to compensation in terms of section 168 of the motor vehicles act, 1988. while assessing compensation under section 168 of the motor vehicles act, 1988, the courts and tribunals are guided by the 2nd schedule, issued under section 163a of the motor vehicles act, which prescribes certain multipliers for persons falling in specified age groups. multiplier prescribed for the age group in which the deceased would fall is thirteen (13).23. according to the affidavit of bir bahadur thapa, petitioner, the pay of the deceased at the time of his death was rs 1566/-. this affidavit of the petitioner has not been disputed by the respondents. the monthly income of the deceased at the time of his death is, therefore, taken as rs. l600/-24. while assessing compensation in such cases like the present one, where the deceased had died in an accident because of the negligent act of the respondents, the same formula and rational needs to be adopted which is adopted in motor vehicular accidents cases.;25. deducting one third (1/3rd) out of the assessed income of the deceased at the time of his death, which would have been spent by him had he remained alive; the monthly dependency of the family on the earnings of the deceased, according to the multiplier method in terms of section 163a of the motor vehicles act would be rs. 1067/-and the annual dependency would be rs. 12,804/-. adopting thirteen as the multiplier, the multiplicand would come to rs. 1,66,452/-. adding conventional amount of rs. 25,000/- for loss of consortium and loss of love and affection and an amount of rs. 5,000/- for funeral expenses, the total compensation would come to rs. 1,96,452/-.26. this petition is, accordingly, allowed and the respondents are directed to pay an amount of rs. 1,96,452/-, minus the amount already paid by them to the petitioners, along with interest @ 9% per annum from the date of filing of the writ petition till its realization.27. respondents, a welfare state, should not have taken so long to provide relief to the petitioners when it had no evidence with it to justify its defence to the petitioners' claim. the respondents have kept the petitioners engaged in unnecessary litigation for more than thirteen years.28. on their success in this petition, the petitioners are held entitled to recover litigation expenses too from the respondents. these litigation expenses are quantified at rs. 30,000/- which shall be paid by the respondents to the petitioners along with the compensation amount.
Judgment:

J.P. Singh, J.

1. After discharging his duties as Cook with 213 Transit Camp Jammu, on November 27, 1990, Santa Lal Thapa was on his way home, along with his colleagues, on bicycles when at about 1700 hours he was hit by a RCC electric pole on his head near Green Belt area of Gandhi Nagar, Jammu, which had fallen, all of a sudden, when the officials of the State Electricity Board, Jammu, were in the process of its installation. The hit was so severe that Santa Lal Thapa died instantaneously.

2. His widow, two sons and daughter, filed this writ petition claiming an amount of Rs. 4,00,000/- (Rupees Four Lac only) as compensation for the death of their bread winner.

3. Opposing the relief claimed by the petitioners, the State respondents, though admitting that the electric pole being installed by the staff of the respondents had fallen all of a sudden because of some defect in the manufacture thereof, pleaded that the deceased had entered the restricted zone, ignoring the warnings sounded by the men at work on spot where electric pole was being installed and in that view of the matter, the respondents were not negligent in discharging their duties. It had further been pleaded by the respondents that the writ petition had raised disputed questions of fact, which could not be gone into by the High Court.

4. The respondents had denied their liability to pay compensation to the petitioners.

5. The case of the petitioners and the objections of the respondents were considered by this Court, but pending resolution of the factual issues by the Civil Court, the petitioners were held entitled to an amount of Rs. 50,000/- by way of interim compensation, vide Order dated December 07, 1998.

6. This order, in so far as it holds the respondents liable to pay interim compensation of Rs. 50,000/- on the basis of no fault liability has attained finality.

7. It was during the pendency of enquiry by the Civil Court as to whether or not, the State was negligent in not taking requisite precautions and measures before and while carrying on the process of installation of electric pole in Green Belt area of Gandhi Nagar, Jammu, that the matter came to this Court once again and this time in Civil Revision No. 148/2002 by the respondents.

8. This Court modified its earlier order of December 07,1998, by providing that the Additional District Judge, Jammu, would record his finding of fact on the disputed questions of fact as to whether employees of the respondents were negligent in the discharge of their duties during the course of erection of RCC Pole and this finding of fact would be in the nature of a report to be submitted to this Court for the decision of this writ petition afresh. Earlier directions issued in OWP No. 716/1994 for treating and trying the writ petition as Civil Suit, were accordingly withdrawn.

9. Learned Additional District Judge, Jammu, has recorded the evidence on factual aspect of the case, though in ex-parte, because the respondents had opted to remain absent on number of occasions.

10. Dealing with the evidence produced by the petitioners, the law on the subject and relying on the judgments of Hon'ble Supreme Court of India in 'Municipal Corporation of Delhi v. Susliila Devi' reported as : [1999]2SCR1198 , and Municipal Corporation of Delhi v. Subhagwanti reported as : [1966]3SCR649 , learned Additional District Judge, Jammu, came to the following conclusion:

In the present case all the witnesses examined by the petitioners have in one voice deposed that Santa Lal Thapa died when the electric pole installed by the employees of the respondents fell upon his head. These witnesses have further deposed that the said employees had not put any signboard or flags so as to warn the passersby of the danger of electric pole, which was being installed by them.

Looking to the facts of the case as coming out in the evidence led by the petitioners, it is apparent that the employees of the respondents were negligent in performing their duties while installing the electric pole. It is the negligence of the employees of the respondents that led to the death of Santa Lal Thapa when the electric pole fell down upon his head. The employees of the respondents were not only negligent in the installation of the electricity pole but were equally negligent in not warning the passer-by that there exists danger of the pole falling down during its installation.

11. In view of the facts and circumstances of the case as discussed above, it is apparent that the negligence of the employees of the respondents led to the death of Santa Lal Thapa.

12. On receipt of the report of learned Additional District Judge, Jammu, the parties were allowed time to file their objections thereto. Respondents have filed their objections, reiterating their earlier stand that despite sounding caution the deceased had barged in the area where installation activities were going on and in that view of the matter the State was not liable to compensate the petitioners for the death of Santa Lal Thapa. They pleaded that sufficient opportunity had not been allowed to the State to cross-examine the witnesses and ex-parte proceedings taken against them were unwarranted.

13. I have heard learned Counsel for the parties and gone through the records. Mrs. Hakim, learned Deputy Advocate General, appearing for the respondents, had failed to point out from the records, as to how the ex-parte proceedings taken against the State were bad in law. The State was aware about the pendency of litigation and the order which this Court had made on their Revision Petition directing the learned Additional District judge, Jammu, to record evidence and make requisite report thereafter. It is not the case of the respondents that they had no notice of the proceedings pending before learned Additional District Judge, Jammu, and in that view of the matter, order passed by learned Additional District Judge, Jammu, setting them ex-parte, when they had opted not to appear during the course of enquiry before the learned Additional District Judge, cannot be faulted because the respondents, despite their having known about the pendency of the proceedings before the Additional District Judge, Jammu, had not come forward with any explanation of any type whatsoever justifying their absence from the proceedings.

14. The objection of the State-respondents that ex-parte proceedings taken against them by the learned Additional District Judge, Jammu, was unwarranted, is thus without any substance and is accordingly rejected.

15. Learned State counsel was unable to project any ground to justify respondents' case that the deceased had entered the prohibited area, ignoring the caution stated to have been sounded by those who were installing the RCC electric pole, in the absence of any evidence or material on records, on the basis whereof, it may be said that they had taken all requisite measures and precautions to protect the area where they were in the process of installing RCC electric pole.

16. The respondents have not placed on records, an)' document(s) or other material on the basis whereof it may be said that they had taken any precautions before and during the process of the insinuation of RCC electric pole in Green Belt area of Gandhi Nagar Jammu. The documents placed on records by the petitioners which have been issued by the officials of the respondents in the discharge of their official functions,, on the other hand, do admit that the RCC electric pole had fallen during the process of its installation, because of some defect in the manufacture thereof The Court of enquiry findings, in which the respondents had been called upon to participate, too indicate that it was because of respondents' omission to take precautionary measures during the course of erection of RCC electric pole that the accident had occurred which had resulted in the death of Santa Lal Thapa. The Court of enquiry findings, for facility of reference, are reproduced herein below:

(a) No. 9842008 Civ CK, Santa Lal of 2131/Camp had died at about 1715 hrs. on 27 Nov., 1990 due to a fatal accident of falling of a RCC Pole on him which was being erected by the workers of JKSEB.

(b) No Army or Civil employee of 213 T/Camp is to be blamed for the death of No. 9842008 Civ CK, Santa Lal.

(c) The cause of the death has been an accident caused partly due to inadequate precautionary measures taken by JKSEB workers who were erecting RCC Pole which had fallen on the deceased on 27 November, 1990 at 1715 hrs.

(d) It had been an accidental death and possibility of any foul-play as per eye witnesses is ruled out. Sd/-Presiding Officer1/C. 16028KLt. Col. Amarjit Singh51 MC area.Members. Sd/-1. IC 35 175F Capt. K.L. Chhetri630 TPT Coy ASC. Sd/-2. JC-180690 Nb/Sub Yousuf Ali213 T/Camp.

17. I do no find any material on records on the basis whereof the findings recorded by learned Additional District Judge, Jammu, on facts, may be disputed. There is enough evidence on record to justify the findings of the learned Additional District Judge, Jammu.

18. Finding no material on records which may point out any infirmity in the report submitted by learned Additional District Judge, Jammu, I have no other option except to accept it. Accepting the report of learned Additional District Judge, Jammu, it is accordingly held that Santa Lal Thapa, had died because of the negligence of the respondents in not taking requisite precautions and sounding alert in the area, where the Electricity Board officials were in the process of installing a RCC electric pole, in Green Belt area of Gandhi Nagar, Jammu, which had broken and fallen all of a sudden, on the head of Santa Lal Thapa, resulting in his instantaneous death.

19. The death of Santa Lal Thapa, having taken place because of the negligence of the respondents, they are liable to compensate the petitioners for the death of their sole bread winner.)

20. Plea of the respondents that the petitioners should have filed a Civil Suit rather than writ petition for claiming damages on account of the negligence of the respondents is misconceived, because the writ petition would certainly he maintainable when a claim in public law for compensation for contravention of human rights and deprivation of fundamental rights had been set up. The claim of the petitioners, based on strict liability cannot thus be denied on the ground that a writ for such a claim was not an appropriate remedy.

21. The deceased was 48 years of age at the time of his death. He is survived by his wife, two sons and a daughter.

22. Had Santa Lal Thapa, died in a Motor Vehicular accident, his dependents would have been entitled to compensation in terms of Section 168 of the Motor Vehicles Act, 1988. While assessing compensation under Section 168 of the Motor Vehicles Act, 1988, the Courts and Tribunals are guided by the 2nd Schedule, issued under Section 163A of the Motor Vehicles Act, which prescribes certain multipliers for persons falling in specified age groups. Multiplier prescribed for the age group in which the deceased would fall is thirteen (13).

23. According to the affidavit of Bir Bahadur Thapa, petitioner, the pay of the deceased at the time of his death was Rs 1566/-. This affidavit of the petitioner has not been disputed by the respondents. The monthly income of the deceased at the time of his death is, therefore, taken as Rs. l600/-

24. While assessing compensation in such cases like the present one, where the deceased had died in an accident because of the negligent act of the respondents, the same formula and rational needs to be adopted which is adopted in motor vehicular accidents cases.;

25. Deducting one third (1/3rd) out of the assessed income of the deceased at the time of his death, which would have been spent by him had he remained alive; the monthly dependency of the family on the earnings of the deceased, according to the multiplier method in terms of Section 163A of the Motor Vehicles Act would be Rs. 1067/-and the annual dependency would be Rs. 12,804/-. Adopting thirteen as the multiplier, the multiplicand would come to Rs. 1,66,452/-. Adding conventional amount of Rs. 25,000/- for loss of consortium and loss of love and affection and an amount of Rs. 5,000/- for funeral expenses, the total compensation would come to Rs. 1,96,452/-.

26. This petition is, accordingly, allowed and the respondents are directed to pay an amount of Rs. 1,96,452/-, minus the amount already paid by them to the petitioners, along with interest @ 9% per annum from the date of filing of the writ petition till its realization.

27. Respondents, a welfare State, should not have taken so long to provide relief to the petitioners when it had no evidence with it to justify its defence to the petitioners' claim. The respondents have kept the petitioners engaged in unnecessary litigation for more than thirteen years.

28. On their success in this petition, the petitioners are held entitled to recover litigation expenses too from the respondents. These litigation expenses are quantified at Rs. 30,000/- which shall be paid by the respondents to the petitioners along with the compensation amount.