Hanifa Bano and ors Vs. State of Jandk; and ors - Court Judgment

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 357 OF 201.Hanifa Bano & ors Petitioners State of J&K & ors Respondent !Mr. Sheikh Altaf Hussain, Advocate ^Ms. Seema Shekhar, AAG Mr. JUSTICE J.

P. SINGH Date:

06. 12.2012 :

: JUDGMENT 1 Abdul Jalil, aged 20 years, a shepherd by occupation, died of electrocution on 23.03.2009 at Village Dusanoo of Tehsil Reasi, on coming in contact with an electric Pole of the Power Development Department of the State Government, which was carrying high voltage electric lines, when he was moving there alongwith his herd of sheep and goats.

2. His widow, Hanifa Bano, father, Abdul Rehman, mother, Bibi, besides his minor sisters Malkan, Zahida Bano and Parveen Akhter and twelve years old brother- Shabir Ahmed have approached this Court claiming compensation of Rs.9,31,500/- (Rupees nine lac thirty one thousand five hundred) for his death from the State Government and its functionaries in the Power 2 Development Department. Contesting their liability to pay compensation for the death of Abdul Jalil, the Staterespondents question the determination of their Claim by this Court in exercise of its Extra Ordinary Writ Jurisdiction. They, however, do not dispute that Abdul Jalil had died because of electrocution. According to them, the cause of electrocution was puncturing/ bursting of Pin Insulator because of sudden fault appearing in the transmission of electricity as a result whereof Phase-I Dusanoo Tap of 11 KV Mahadev Feeder came in contact with the cross arm of HT Pole thereby energizing the Pole with which the deceased came in contact.

3. All of a sudden bursting of the Pin Insulator and Phase-I Dusanoo Tap of 11 KV Mahadev Feeders coming in contact with the cross arm of HT Pole being beyond their control, the State-respondents deny their liability to pay compensation. It is further stated that there being no proof of the income of the deceased as Rs.6,000/- (Rupees six thousand), the claim of compensation made by the petitioners was, therefore, exaggerated.

4. Heard learned counsel for the parties and considered their submissions.

5. The issue raised by the respondents that the petitioners claim cannot be entertained for adjudication in exercise of Extra Ordinary Writ Jurisdiction is no longer res integra and may not need discussion on the issue in view of the law laid down by this Court in Mustaq Ahmed & 3 ors. v. State of Jammu & Kashmir & ors. reported as AIR 200.JK 2.and Joginder Singh & ors. v. State of J&K & ors. reported as 2011 (1) JKJ 722.where while dealing with the issue, it was held in Mustaq Ahmeds case(supra) as under:-  13. The question that, therefore, falls for consideration is as to whether even in such type of cases, where death or injury is caused because of leakage of electric energy by the State engaged in supply of electric energy, which, no doubt, poses a potential threat to the safety of living beings, if not would be debarred from invoking extra ordinary civil writ jurisdiction of the Court when the electrocution had taken place because of no fault of the victim.

14. Any act or omission of the State and its functionaries which taken away the life or otherwise impairs or injures it, would, in persons fundamental right to Life and Liberty flowing from Article 21 of the Constitution of India. Engaged in a hazardous and inherently dangerous activity of supplying electric energy, which if left uncontrolled would take away life or impair and inure it, the State cannot thus be heard to say that the victim aggrieved by the after effects of such discharge of electric energy, will be disentitled to invoke the writ jurisdiction of the Court to seek compensation therefor, determination whereof may not require decision on any complicated and disputed questions of fact. And in Joginder Singhs case (supra) as follows:- 26. After referring to all the judgments, in our consideration view, the ratio of the judgment handed down by the Apex Court in SDO Grid Corporations case (supra) relied upon by Mr. Thakur and also made the basis for rejection of all the three writ petitions filed by the appellants, does not whittle down the law laid down by the Apex Court in M.P. Electricity Boards case as in SDO Grid Corporations case (supra), the Apex Court considered the earlier decision rendered in M. P. Electricity Boards case and without affecting the principle of strict liability distinguished the said judgment on the ground that the question of negligence was determined by Civil Court. Therefore, it can be reasonably understood that 4 M.P. Electricity Boards case has been distinguished on its own facts and the Honble Supreme Court has not taken any contrary view from the one already taken with regard to the doctrine of strict liability as discussed in extenso in the judgment of Constitution Bench of Supreme Court in M.C. Mehtas case(supra). 6. In view of the admitted position that Abdul Jalil had died because of electrocution as a result of uncontrolled discharge of high voltage electric energy, the respondents Objection to the maintainability of the Writ Petition may not be tenable additionally because no act, overt act or omission has been attributed to the deceased which may be said to have led to his electrocution. This apart, the Police Department having registered a Case against the functionaries of the Power Development Department of the State Government under Section 304- A RPC for their rash and negligent act in dealing with electric energy, the State cannot be heard on nonmaintainability of the Writ Petition. The States Objection is, therefore, over -ruled.

7. The next plea of the respondents that the State Government was not liable to compensate the petitioners for the death of Abdul Jalil, too, is found without substance in view of the State Governments admission that the electrocution of Abdul Jalil was a result of escape of High Voltage Electric Energy which had occasioned because of bursting of Pin Insulator and joining of Phase-I Dussanoo Tap of 11 KV Mahadev Feeder on the cross arm of HT Pole”

8. The State Government, which was dealing in the hazardous activity of transmission of High Voltage Electric Energy, was, in law, bound to take requisite safety measures lest the electric energy, it was dealing in, escaped uncontrolled resulting in loss and damage. It was, in law, bound to install such safety measures and devices besides taking other requisite precautionary measures, which in case of such like happenings during the transmission of electric energy, would automatically stop uncontrolled flow of electric energy. This having not been done, the State Government cannot absolve itself of the strict liability that the law imposes on it to compensate for the damage caused because of its failure in taking requisite safety measures while dealing with High Voltage Electric Energy that, by its nature, was prone to cause loss and damage, if left uncontrolled, to those coming in contact therewith. Respondents learned counsels submission that all of sudden bursting of pin insulator being beyond the control of the State Government, the State was not liable to pay compensation to the claimants, is, therefore, found misconceived, hence rejected.

9. Coming to the third question as to how much compensation was payable for the death of Abdul Jalil and, if so, to whom, it comes out from the material on records that the status of Abdul Jalil as shepherd is not disputed by the respondents and in the circumstances the 6 only issue that needs consideration is as to whether or not the petitioners Claim was exaggerated.

10. When the deceased is admitted to be a shepherd at the time of his death, his income at the time of his death can be assessed for determination of compensation payable to his dependents keeping the law laid down by Honble Supreme Court of India in view in terms whereof income of non-earning persons is taken at Rs. 3000/- (Rupees three thousand) per month to determine compensation payable to the dependents of such persons in cases of Motor Vehicular Accidents. Therefore, taking into consideration the admitted fact that the deceased was a shepherd with large number of sheep, goats and other animals, applying of some guesswork to assess the income of the deceased becomes necessary, for, it is not expected from an illiterate shepherd to keep account of his monthly or annual earnings. Therefore, giving margin to possible exaggeration pleaded by the petitioners to get enhanced amount of compensation and considering that had the deceased been a non-earning person and died in a Motor Vehicular Accident, compensation payable to his dependents would be assessed taking his monthly income at Rs.3,000/- (Rupees three thousand), Rs.5000/- (Rupees five thousand), in the circumstances, can safely be taken as his monthly income at the time of the death. Deducting 1/3rd therefrom that he would have spent on himself had 7 he survived the accident, the monthly economic dependence of the widow and mother of the deceased on his income would, therefore, be Rs.3333/- (Rupees three thousand three hundred and thirty three) per month. Their annual dependence would come to Rs. 39,996/- (Rupees thirty nine thousand nine hundred and ninety six), which on rounding off would be Rs.40,000/- (Rupees forty thousand).

11. Keeping in view the fact that the father of the deceased is alive, the rest of the petitioners and father cannot be said dependent on the income of the deceased, in that, nothing has been brought on records justifying a finding of petitioner Nos. 2, 4, 5, 6, and 7s dependence on the deceased. They may not, therefore, be entitled to compensation for the death of Abdul Jalil.

12. Applying the same formula, which the Parliament had devised for assessing compensation for those who suffer because of the loss of life or injury caused to the victims of the Motor Vehicular Accidents, in terms of Section 163 A of the Motor Vehicle Act, 1988 and the law laid down by Honble Supreme Court of India in Sarla Verma & ors v. Delhi Transport Corporation & anr. reported as 2009 (3) Supreme 487, 18 is selected as multiplier to assess the loss of dependence to the petitioners, the age of Abdul Jalil- deceased at the time of death being 20 years. The loss of dependence would, therefore, come to Rs. 7,20,000/- (Rupees seven Lac 8 twenty thousand). Adding Rs.15,000/- (Rupees fifteen thousand) for Burial and post Burial expenses and Rs.15000/- (Rupees fifteen thousand) for loss of consortium and love and affection, the total compensation payable for the death of Abdul Jalil would, therefore, be Rs.7,50,000/- (Rupees seven lac fifty thousand). Petitioner No.1, widow of the deceased, is held entitled to Rs.5,50,000/-(Rupees five lac fifty thousand) and petitioner No.3, the mother, to Rs.2,00,000/-(Rupees two lac).

13. The amount payable to the petitioners shall carry interest @ 9% per annum from the date of filling of the Petition till its realization.

14. The respondents, who were bound to compensate the petitioners for the death of Abdul Jalil, having failed to discharge their obligation in so doing, a command needs to be issued to them to pay compensation to the petitioners.

15. This Petition, accordingly, succeeds and is, therefore, allowed issuing directions to the respondents to pay the petitioners Rs.7,50,000/- (Rupees seven lac fifty thousand) along with interest @ 9% per annum in the manner indicated hereinabove within eight weeks. ( J.

P. Singh ) Judge JAMMU: Sunita. 06.12.2012