HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No.79/2013
IA No.99001/2013
Reserved on: 19.10.2023.
Pronounced on: 21.10.2023.
Arti Devi, Age 31 years ....Petitioner
W/O Suresh Kumar,
R/O Bagh-e-Bahu,
Tehsil & District Jammu
Through :- Mr. K. Nirmal Kotwal, Advocate.
V/S
1. State of Jammu & Kashmir through ....Respondent(s)
Chief Secretary, Govt. of J&K
Civil Secretariat, Jammu
2. Commissioner/Secretary to Govt. of J&K,
Power Development Department,
Govt. of J&K, Civil Secretariat Jammu
3. Chief Engineer,
Electric Maintenance and R.E. Wing,
Canal Road, Jammu.
4. Executive Engineer,
Transmission Line, Gandhi Nagar, Jammu
Through :- Mr. Amit Gupta, AAG.
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
1. This writ petition was filed by the petitioner, seeking a writ of mandamus directing Respondents to pay a compensation of ₹15.00 lacs along with interest @ 18% per annum to the petitioner, on account of death of her minor son-Banu Kumar, due to electrocution when he came in contact with live fallen down electric wire while playing in the street, near Temple at Bagh-e- Bahu, Jammu, and met the fatal electrical accident.
2. The case of the petitioner is that her minor son, namely, Banu Kumar, on the fateful day i.e. 11.10.2010, when he was playing mirthfully adjacent to his 2 OWP No.79/2013 house got electric shock with a live wire installed by the respondents department, which was allegedly fallen down, near the temple at Bhag-e-Bahu, Jammu, and received injuries/burns on the spot; that he was immediately rushed to Govt. Medical Hospital, Jammu by the police and the people of the vicinity, where he was declared as dead, his post-mortem was conducted there and the cause of death was reported as 'death due to electrocution'; that regarding this incident, FIR No.45/2010 came to be registered at Police Station Bagh-e-Bahu for the alleged negligence of the employees of the respondents Department, in not maintaining proper lines.
3. It is contended that the untimely tragic departure of the son of the petitioner to another world occurred only and only due to negligence in maintaining the proper electric line and this negligence, on the part of the employees of the respondents Department, has resulted in this electrical accident, in which, a beautiful sprout, whose fragrance was yet to mesmerize the world, was ruthlessly charred to death, as the minor child was stated to be excellent in studies and had a inquisitive mind; that the people of the area, had on various occasions, informed the employees of the respondents Department to remove the live wire and also the wires dangling precariously over the roofs of the houses/shops of the area, but the requests invariably fell on deaf ears, which has resulted into the death of the son of the petitioner. Under the circumstances, the petitioner, thus, seeks compensation from the respondents for the death of her son caused due to electrocution.
4. The respondents question the maintainability of this writ petition on the ground that it involves disputed question of facts, which cannot be considered by this Court in exercise of its writ jurisdiction. In support of their 3 OWP No.79/2013 submissions, the respondents placed reliance on a judgment rendered by Hon'ble Apex Court in a case titled Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) & Ors. v. Sukamani Das & Anr. "1999 AIR (SC) 3412".
5. The learned counsel for the petitioner has, vehemently, argued that the minor son of the petitioner has lost his life due to the negligent act attributable to Respondents, who failed to maintain the electric wires, as provided under the provisions of the Electricity Act and Rules framed thereunder and, thus, the State is under legal obligation to compensate the petitioner because due to their negligent Act, she has lost her son.
6. Learned counsel for the petitioner has placed on record a policy for grant of ex-gratia relief to the departmental or non-departmental persons, who are killed/grievously incapacitated on account of electrocution and related accidents. Same are governed under Government Order No.328-PDD of 2011 dated 24.11.2011 and subsequently Government Order No. 454-F of 2019 dated 24.10.2019 and, according to them, compensation to be paid to the petitioner would be only in terms of these Government orders.
7. In support of his contentions, learned counsel has placed reliance on the judgment of this court in OWP No.902/2010 titled Radha Sharma v. State of JK & Ors. passed on 01.03.2023 and judgment of the Division Bench of this court in LPA No.87/2021 titled Union Territory of J&K & Anr. v. Kamlo Devi' passed on 28.03.2023.
8. Per contra, Mr. Amit Gupta, learned AAG appearing on behalf of the Respondents, disputed the fact that any live wire had fallen down near the pole as alleged by the petitioner and that the Respondents have not committed any act 4 OWP No.79/2013 which would warrant payment of compensation and the petitioner by no stretch of imagination can claim compensation as a matter of right.
9. Learned counsel for the respondents submitted that the death of the petitioner's son might have been caused due to electric shock by touching the pole, which was allegedly carrying current, due to defective street light fitted and maintained by the municipality. He further urged that the respondents are not liable to pay compensation.
10. Heard learned counsel for the parties at length.
11. In this case, though it is argued on the side of the respondents that the writ petition is not maintainable, when the facts are disputed, this court is not inclined to accept the same. As the petitioner's son has lost his life as a result of the negligence on the part of the officials, they are bound to pay compensation to him. The judgment relied upon by learned AAG for the respondents is not applicable to the present case as the distinguishable factor in that case is that there was no negligence and the incident was on account of the act of God, but in the present case, it is clear cut case of negligence on part of the Respondents.
12. The next question to be considered is that, what could be the amount of compensation, the petitioner would be entitled to on account of death of her son due to electrocution. Learned counsel for the parties, after some arguments, submitted that the matter can be dealt with, in view of the Govt. Order with regard to payment of ex gratia awardable to the victims of electrical accidents like electrocution, in case of death. The death of the deceased had taken place in the month of October 2010. Learned counsel for the respondent submits that for the death of the deceased, Govt. Order of 2011 can be made applicable, which provided that an amount of ₹3.00 lacs is payable in case of death. However, 5 OWP No.79/2013 learned counsel for the petitioner submits that Govt. Order of 2019 has to be made applicable to the case, which provides an amount of ₹10.00 lacs as ex gratia in case of death.
13. Had the respondent made payment in terms of 2011 Govt. Order, situation would have been different. When the case was not settled by the respondents before the new scheme was notified by the Govt. of J&K in the year 2019, the Govt. Order of 2019, is to be made applicable in view of beneficial scheme.
14. The Government Order No.454-F of 2019 dated 24.10.2019 providing the amount of compensation to be paid to various categories of persons who are electrocuted and die, or are rendered fully/partially disabled due to the negligence of the PDD reads as:
S. No. Nature of Power To whom Extent
delegated
123-A 1) To grant Ex-gratia Relief in DCP Full powers within the Budget
favour of the employees of the PDD, Provisions with the following
other persons or their heir and to the scales:
owners of Domestic Animals, who are
electrocuted and died, or are rendered
fully/partially disabled due to the
negligence of the PDD, subject to the A. Human Beings:
condition that: I. In case of Death= Rs. 10.00
(i) All the employees of the PDD, lacs.
whether regular, DRW/casual labour,
Work Charged, Contingent paid etc, II. Total Disability= Rs. 7.50 lacs.
engaged in the generation, transmission
or supply of electrical energy in the III. Partial Disability = Rs.2.00 lacs.
Department, who are killed,
incapacitated, wholly or partially,
during the course of discharging their In case of death of any employee,
bonafide and legitimate duties; the Ex-gratia relief shall be paid to
the legal heirs of the deceased. The
(ii) Civilians, killed or injured, payment shall be subject to the
resulting in their partial or total condition that the relief, granted
disability, subject to the explicit by the Government under the
condition that the accident is not Workman's Compensation Act,
attributable to them, but to the lapses, shall be adjusted while making
attributable to the PDD, as verified by payment of the Ex-gratia relief.
the Director, TTI & C;
B. Domestic Animals
i. Cow, bull, horse =
(iii) Domestic animals killed by Rs.20,000
electrocution, caused due to lapses, ii. Sheep/Goat = Rs.5,000.
attributable to the Department and
verified by the Director, TTI & C.
6 OWP No.79/2013
15. The case of the petitioner is fully covered by the aforesaid policy as the accident is not attributable to the injured but to the lapses attributable to PDD as per the pleadings discussed hereinabove.
16. In view of the above, the writ petition is maintainable for award of compensation and the respondent State is under obligation/duty to see that electric installations are properly fenced and are placed in a position and height so that these are not accessible to the general public and the children in particular. The State cannot claim immunity by pleading negligence on the part of the injured, who was a minor child of about 6 years of age at the time of the electrical accident.
17. Petitioner's case for compensation needs to be considered for assessment of compensation on the basis of policy promulgated, vide Government Order NO.454-F of 2019 dated 24.10.2019.
18. In the circumstances, in the considered opinion of this court, an amount of Rs.10.00 lakhs would appropriate, just and fair ex gratia for the petitioner in view of death of her minor son as well as in conformity with the policy of payment of ex-gratia relief to civilians and departmental employees promulgated vide order No.454-F of 2019 dated 24.10.2019, who have died or injured due to electricity related incidents.
19. In view of the aforesaid discussion and in the facts and circumstances of the case, this petition is allowed and the respondents are directed to pay the petitioner a sum of Rs. 10.00 lakhs, as ex gratia to the petitioner, within a period 7 OWP No.79/2013 of two months, starting from the date of passing of this judgment, failing which the amount shall be recoverable along with simple interest @ 10% per annum.
20. Disposed of accordingly along with connected application(s).
) (MA CHOWDHARY)
Jammu: JUDGE
21.10.2023
Raj Kumar
Whether the order is speaking? Yes/No.
Whether the order is reportable? Yes/No.