Bheem Sen vs State Of U.P. And Others
2019 Latest Caselaw 3563 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
	          							Reserved           
 
Court No. 21
 
Case :- WRIT - C No. - 16877 of 2009
 

 
Petitioner :- Bheem Sen
 
Respondent :- State Of U.P. and Others
 
Counsel for Petitioner :- V.K. Kushwaha, S.P. Srivastava
 
Counsel for Respondent :- C.S.C., A.L. Tripathi, Amrit Lal Yadav, Baleshwar Chaturvedi, Shrawan Kumar Tripathi
 

 
Hon'ble Pradeep Kumar Singh Baghel, J.

Hon'ble Pankaj Bhatia, J.

(Delivered by Hon. Pankaj Bhatia, J.)

Heard learned counsel for the petitioner and Sri A.K. Goyal, learned Additional Chief Standing Counsel for the State-respondents.

The present petition has been filed challenging the order dated 4.12.2008 passed by respondent no.5 (Annexure-13 to the writ petition) whereby Rs.50,000/- has been paid as compensation on account of injuries sustained by the petitioner on account of the negligence of the respondent-authority due to loose electricity high tension wire which came in contact with the petitioner.

The facts of the case, in brief, are that the petitioner was engaged in selling of milk and on 6.1.2006 at about 8.30 P.M. when the petitioner was passing through the field he came in contact with the high tension electricity wire passing through the village Virheru which was laid from the 33/11 KV sub station Saiya District Agra and was hanging at just 5 feet from the ground, the petitioner came in contact with the said wire which was hanging loose which resulted in electric shock, the petitioner was admitted to the Nursing Home where medical examination was done by the Doctor. It is stated that on account of the said accident the petitioner became permanently disabled and the Chief Medical Officer issued a certificate certifying 75% disability to the petitioner. A copy of the said disability certificate issued by the Chief Medical Officer is on the record as Annexure-2 to the writ petition.

The petitioner's brother moved an application on 16.1.2006 before the respondent-authority for grant of compensation on account of the aforesaid accident which took place on 6.1.2006 on account of sheer negligence of the respondent-authorities. The respondent-authorities prepared a report under Section 161 of the Electricity Act, 2003 wherein it was recorded that the accident has happened on account of erroneous maintenance. It was further recorded that if action had been taken timely to fix the hanging wire, the accident would not have occurred.

The petitioner who is brother, requested for grant of compensation however, on 14.9.2007 the petitioner was advised to file a petition under Sections 128 & 129 of the Electricity Act, 2003. The said application was filed and registered as Petition No.480 of 2007, the said application was opposed by the respondent-authorities. The petitioner states that he had submitted the required documents including the disability certificate dated 3.7.2008 in support of his claim for compensation. Ultimately, the respondent no.5 after hearing the matter on 17.12.2008 decided the petition and directed the respondents to pay a sum of Rs.35,000/- only to the petitioner within 15 days of the receipt of copy of the order in terms of the Corporation's circular/order dated 19.4.2006. The respondent no.5 further awarded a sum of Rs.15,000/- only towards the loss incurred by the petitioner in pursuing the matter before the Commission. In the said order, directions were also issued to the effect that the licensee as well as the State Government had not framed any Rules/ Regulations for awarding the compensation in the case of electricity accidents, as such directions were issued for framing of the said Rules.

The petitioner has challenged the said order alleging that the order is wholly arbitrary, illegal and against the settled provisions of law and the compensation awarded is wholly inadequate considering the disability suffered by the petitioner on account of the said accident which has resulted into disability of 75% to the petitioner. The petitioner further argues that the petitioner had claimed a compensation of Rs.46,21,700/- however, a paltry amount of Rs.35,000/- has been granted which is violative of the rights of the petitioner enshrined under Part III of the Constitution of India and thus, prayed that just compensation be awarded to the petitioner by enhancing the compensation suitably. The petitioner has further filed a supplementary affidavit annexing the documents filed by the petitioner in support of the claim made by the petitioner and further stated that the petitioner used to earn Rs.250/- per day. In the said documents filed along with the supplementary affidavit the petitioner has given a breakup of his claim for compensation and had worked out claim at Rs.46,21,700/- as the total claim to which the petitioner claims to be entitled to.

The respondents have filed a counter affidavit denying the averments made in the writ petition as well as pleaded that in terms of the policy decision of the Power Corporation, the amount paid to the petitioner is just and proper and the order needs no interference. The respondents have also brought on record the Circular/Policy decision No.1780/ vkS0l0-17/ ik0dk0yh0/2006-19(125) ,0,l0/ 2001 dated 19.4.2006 wherein a policy has been taken for payment of Rs.50,000/- as compensation on account of serious injuries sustained in an accident which have occurred subsequent to 11.4.2006. By means of the said circular the amount of compensation has been increased from Rs.20,000/- to Rs.50,000/- in case of serious disability. The respondents have however, not disputed the income of the petitioner as alleged nor have disputed the age of the petitioner.

The petitioner has placed reliance on the judgements of this Court in the case of Shiv Ranshu Chhuneja Vs. State of U.P. & others 2018 (6) A.D.J. 355 and Yash Pal Singh (Minor) and another Vs. State of U.P. and others 2017 (5) ADJ 696. The petitioner has also relied upon the judgement of the Hon'ble Supreme Court in the case of State of Himachal Pradesh & others Vs. Naval Kumar alias Rohit Kumar, (2017) 3 SCC page 115 and Balram Prasad Vs. Kunal Saha and others (2014)1 Supreme Court Cases-384 in support of the claim.

From the averments made in the writ petition as well as the counter affidavit the facts which are undisputed are;

(1) That the petitioner met with an accident on 6.1.2006 on account of hanging wire which was hanging too low and was a case of negligence by the Power Corporation.

(2) The age of the petitioner at the time of accident was 28 years and the income of the petitioner was Rs.250/- per day. Negligence of department is established by their own report. There is also no serious challenge to the claims made by the petitioner under various heads for claiming compensation.

The questions to be decided by this Court that arise after exchange of the pleadings and after considering the legal position are whether the petitioner is entitled to compensation which is just and proper in exercise of power under Article 226 of the Compensation of India and whether the compensation as provided by the circular issued by the Power Corporation and relied upon while passing the impugned order can be considered as 'just and proper' so as to exonerate the Power Corporation from any further liabilities.

The Hon'ble Supreme Court in the case of Balram Prasad (Supra) further considering the claim of compensation in the medical negligence cases and on the question of just compensation held as under:-

"104. In view of the aforesaid decisions of this Court referred to supra, wherein this Court has awarded ''just compensation' more than what was claimed by the claimants initially and therefore, the contention urged by learned senior counsel and other counsel on behalf of the appellant-doctors and the AMRI Hospital that the additional claim made by the claimant was rightly not considered by the National Commission for the reason that the same is not supported by pleadings by filing an application to amend the same regarding the quantum of compensation and the same could not have been amended as it is barred by the limitation provided under Section 23 of the Consumer Protection Act, 1986 and the claimant is also not entitled to seek enhanced compensation in view of Order II Rule 2 of the CPC as he had restricted his claim at Rs.77,07,45,000/-, is not sustainable in law. The claimant has appropriately placed reliance upon the decisions of this Court in justification of his additional claim and the finding of fact on the basis of which the National Commission rejected the claim is based on untenable reasons. We have to reject the contention urged by the learned senior counsel and other counsel on behalf of the appellant-doctors and the AMRI Hospital as it is wholly untenable in law and is contrary to the aforesaid decisions of this Court referred to supra. We have to accept the claim of the claimant as it is supported by the decisions of this Court and the same is well founded in law. It is the duty of the Tribunals, Commissions and the Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation. Therefore, we are of the view that the claimant is entitled for enhanced compensation under certain items made by the claimant in additional claim preferred by him before the National Commission.

115. He has also rightly placed reliance upon observations made in Malay Kumar Ganguly's case referred to supra wherein this Court has held the appellant doctors guilty of causing death of claimant's wife while remanding the matter back to the National Commission only for determination of quantum of compensation for medical negligence. This Court has further observed that compensation should include "loss of earning of profit up to the date of trial" and that it may also include any loss "already suffered or likely to be suffered in future". The claimant has also rightly submitted that when the original complaint was filed soon after the death of his wife in 1998, it would be impossible to file a claim for "just compensation". The claimant has suffered in the course of the 15 years long trial. In support of his contention he placed reliance on some other cases also where more compensation was awarded than what was claimed, such as Oriental Insurance Company Ltd. Vs. Jashuben & Ors., R.D. Hattangadi , Raj Rani & Ors, Laxman @ Laxaman Mourya all cases referred to supra. Therefore, the relevant paragraphs from the said judgments in-seriatum extracted above show that this Court has got the power under Article 136 of the Constitution and the duty to award just and reasonable compensation to do complete justice to the affected claimant.

117. Also, in view of the above reasoning the contention that the claimant has waived his right to claim more compensation in view of the Order II Rule 2 of CPC as pleaded by the AMRI Hospital and the appellant-doctors is also held to be wholly unsustainable in law. The claimant is justified in claiming additional claim for determining just and reasonable compensation under different heads. Accordingly, the point Nos. 1, 2, and 3 are answered in favour of the claimant and against the appellant-doctors and the Hospital."

The Hon'ble Supreme Court further rejected the strait jacket multiplier method for determining the quantum of compensation. The Supreme Court also accepted the life expectancy of the healthy persons at 70 years of age and recorded as under:-

"124. A careful reading of the above cases shows that this Court is sceptical about using a strait jacket multiplier method for determining the quantum of compensation in medical negligence claims. On the contrary, this Court mentions various instances where the Court chose to deviate from the standard multiplier method to avoid over-compensation and also relied upon the quantum of multiplicand to choose the appropriate multiplier. Therefore, submission made in this regard by the claimant is well founded and based on sound logic and is reasonable as the National Commission or this Court requires to determine just, fair and reasonable compensation on the basis of the income that was being earned by the deceased at the time of her death and other related claims on account of death of the wife of the claimant which is discussed in the reasoning portion in answer to Point (i) to (iii) which have been framed by this Court in these appeals. Accordingly, we answer the Point (iv) in favour of the claimant holding that the submissions made by the learned counsel for the appellant-doctors and the AMRI Hospital in determination of compensation by following the multiplier method which was sought to be justified by placing reliance upon Sarla Verma and Reshma's cases (supra) cannot be accepted by this Court and the same does not inspire confidence in us in accepting the said submission made by the learned senior counsel and other counsel to justify the multiplier method adopted by the National Commission to determine the compensation under the head of loss of dependency.

167. The multiplier method to be applied has been convincingly argued by the learned counsel for the appellant doctors and the Hospital against by the claimant which we concede with based on the reasoning mentioned while answering point. Therefore, estimating the life expectancy of a healthy person in the present age as 70 years, we are inclined to award compensation accordingly by multiplying the total loss of income by 30."

This Court in the case of Shiv Ranshu Chhuneja (supra) while dealing with the similar case wherein Rs.50,000/- was awarded as compensation, considered the entire case law on the subject as well as the statutory provisions and held as under:-

"The first issue, therefore, that we have to determine is as to whether the present writ petition can be entertained and maintained for the award of such compensation and for quashing of the order passed by the respondent - Corporation. We may put on record that the orders, which have been passed for awarding compensation is in the statutory exercise of power under Section 161 of the 2003 Act. Such an order being an order awarding compensation partakes the nature of not only an administrative order which touches quasi judicial functions as it is an order pertaining to award of compensation to a person having suffered an injury and also that virtually affects his fundamental rights guaranteed under Article 21 of the Constitution of India. In such circumstances, the order passed by the Chief Electrical Inspector can be made amenable to the jurisdiction of this Court under Article 226 of the Constitution of India. It is not only to be tested on the principle of administrative law and reasonableness but also on the ground of protection and enforcement of fundamental rights guaranteed under Article 21 of the Constitution of India, which is one of the primary duties of this Court as enshrined under the Constitution of India. A writ petition can be maintained before this Court for which we find ample support from the judgment of the Apex Court in the case of Chairman, Railway Board and others Vs. Chandrima Das (Mrs.) and others, (2000) 2 SCC 465. Paragraphs 9 to 11 that are extracted hereinunder :

"9. Various aspects of the Public Law field were considered. It was found that though initially a petition under Article 226 of the Constitution relating to contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The Public Law remedies have also been extended to the realm of tort. This Court, in its various decisions, has entertained petitions under Article 32 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries at the hands of the officers of the Govt. The causing of injuries, which amounted to tortious act, was compensated by this Court in many of its decisions beginning from Rudul Sha v. State of Bihar (1983) 4 SCC 141 . (See also Bhim Singh v. State of Jammu and Kashmir (1985) 4 SCC 577; Peoples' Union for Democratic Rights v. State of Bihar (1987) 1 SCC 265; Peoples' Union for Democratic rights v. Police Commissioner, Delhi Police Headquarters (1989) 4 SCC 730; Saheli, A Women's Resources center v. Commissioner of Police, Delhi (1990) 1 SCC 422; Arvinder Singh Bagga v. Stae of U.P., AIR 1995 SC 117; P. Rathinam v. Union of India 1989 Supp (2) SCC 716; Death of Sawinder Singh Grower In re 1995 Supp (4) SCC 450; Inder Singh vs. State of Punjab (1995) 3 SCC 702; and D.K. Basu v. State of West Bengal (1997) 1 SCC 416.

10. In cases relating to custodial deaths and those relating to medical negligence, this Court awarded compensation under Public Law domain in Nilabati Behera v. State of Orissa (1993) 2 SCC 746; State of M.P. v. Shyamsunder Trivedi (1995) 4 SCC 262; People's Union for Civil Liberties v. Union of India (1997) 3 SCC 433 and Kaushalya v. State of Punjab (1999) 6 SCC 754; Supreme Court Legal Aid Committee v. State of Bihar (1991) 3 SCC 482; Jacob George (Dr.) v. State of Kerala (1994) 3 SCC 430; Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996) 4 SCC 37 and Manju Bhatia v. New Delhi Municipal Council (1997) 6 SCC 370

11. Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the Civil Court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law."

This Court while considering the question of quantum of compensation recorded as under:-

"63. We are of the view that assessment in the light of income is a presumptive method and if it is taken into account then from minimum wages to highest paid salary may be available and it would be very difficult to assess at this juncture. The calculation in the light of minimum expenditure to be incurred on the maintenance of the life of the petitioners is a reasonable amount (minimum required in our view) is about Rs. 10,000/- per month and calculating the annual expenditure, it comes to Rs. 1,20,000/- per year and expectancy of life minimum further 50 years. The multiplier for calculation of compensation to be awarded to the petitioners would be 10,000 × 12 × 50 = 60,00,000/- each.

64. The petitioners are also entitled to standard damages towards the following heads--

I. Towards loss of companionship, life amenities and loss of pleasure.

II. Pain and suffering including mental distress, trauma, discomfort and inconvenience.

III. Expenditure to be incurred towards the attendant/nursing expenses.

IV. Expenditure to be incurred for securing artificial/robotic limbs and medical expenses."

This Court in the case of Yash Pal Singh (Supra) while dealing with the similar issue held that the minimum expectancy of the amount can be taken as Rs.50,000/- and the compensation is to be granted in the following manner:-

Rs. 10,000/- X 12 X 50 = Rs. 60,00,000/-.

The said case related to injuries sustained by two young boys aged about 12 years and 14 years who came into contact with a naked 11 KV electricity wire on account of negligence and the Court proceeded to grant a compensation of Rs. 60 lakhs each and also a sum of Rs. 4 lakhs was awarded to the natural guardian of each of the petitioner for trauma, mental shock and pain of agony to them. The petitioner has also relied upon the judgement of the Supreme Court in the case of State of Himachal Pradesh & others V. Naval Kumar alias Rohit Kumar (Supra) wherein the Hon'ble Supreme Court had granted a compensation of Rs. 90 lakhs to a boy who was 8 years of age and had suffered on coming in contact with the electricity high tension wire. The Supreme Court also held that Rs. 90 lakhs along with interest @ 6% as just compensation.

The Supreme Court in the case of Raj Kumar Vs. Ajay Kumar (2011) 1 Supreme Court Cases 343, has laid down that while determining compensation for cases relating to personal injury the quantum of damages to be awarded should be under pecuniary damages and non-pecuniary damages. In paragraph 6 of the said judgment, the Supreme Court laid down as under:-

"6. The heads under which compensation is awarded in personal injury cases are the following :

Pecuniary damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General Damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."

In our quest to calculate 'just compensation' to which the petitioner is entitled, we have relied upon the calculation given by the petitioner in the supplementary affidavit where the claims are as under:-

;kfpdk la- [email protected] esa vk;ksx }kjk ikfjr vkns'k fnukad 11 vxLr] 2008 ds dze esa {kfriwfrZ dk fooj.k fnukad 6-1-2006 dks ?kfVr Hkhelsu dh ¼visf{kr ftls Vkyk tk ldrk Fkk½ fo|qr nq?kZVuk ds lEcU/k esa gkfu {kfr ,oa vlqfo/kk dk fooj.k fuEu izdkj gS%

1- ?kVuk LFky ls vLirky rd ykus&ys tkus dk fdjk;k 8]000/-

2-	vLirky dks Hkqxrku dh xbZ jkf'k 	                     	11]500/-
 
3-	[kjhnh xbZ nokbZ dh jkf'k		   			   	15]640/-
 
4-	iSFkksykWth pktZ							   	1]670/-
 
5-	MkW- dh Qhl							      	90/-
 
6-	6-1-2006 ls 2-2-2008 rd nq?kZVuk ds dkj.k gqbZ vlqfo/kk esa dk;Z 
 
	u djus ds dkj.k gqbZ gkfu dh jkf'k		             		1]80]000/-
 
7-	fo|qr foHkkx ,oa ek- vk;ksx ls i=kpkj esa Vkbfiax dk O;;  		4]000/-
 
8-	izkFkhZ dks vk;ksx ds le{k izLrqr gksus esa dk;Z 
 
	dh gqbZ gkfu dh jkf'k       				  		10]000/-
 
9-	nnZ ds dkj.k gqbZ gkfu dh jkf'k
 
	¼ekuuh; vk;ksx fu/kkZfjr djus dh d`ik djsa½               		-----		
 
10-	lk{kksa dks ,d= djus esa gqvk O;;		               	5]000/-
 
11-	?kVuk ds dkj.k ml le; psgjs ij 
 
	gqbZ xEHkhj fonw"krk gkfu dh jkf'k                     		4]00]000/-
 
12-	vU; pksVs tks bUtjh fjiksVZ esa izekf.kr gSa	             		80]000/-
 
13-	ifjokj dks ekufld izrk.kuk dh jkf'k	            			3]00]000/-
 
14-	?kk;y dks vk;ksx ds le{k vkus tkus [kpZ 
 
	jkf'k dh gkfu                                      		1]000/-
 
15-	izkFkhZ dks vkus tkus [kpZ jkf[k dh gkfu	             			8]000/-
 
16+-	vuqekfur dk;Z'khy vk;q x vk; o"kksZa esa 		
 
	(37 x 86,400)	        			   		31]96]800/-
 
17-	75 izfr'kr fo/kq:rk dh gkfu dh jkf'k	          			400]000/-
 

 
dqy Nfr iwfrZ jkf'k dk ;ksx		             			46]21]700/-
 
(N;kyhl yk[k bDdhl gtkj lkr lkS :i;s ek=)A
 
									   								               	 izkFkhZ
 
									 							  	           		t;f'ko 'kekZ
 
			     		C/o jkeizlkn ,.M lal] vLirky jksM] vkxjk&3	
 

A bare perusal of the claims as raised by the petitioner, we feel that the amount shown as income by the petitioner is even less than minimum wages payable and considering the age of the petitioner at the time of accident at 28 years and the life expectancy as worked out and held by the Supreme Court to be just at 70 years. The claim for compensation on account of disability suffered can be worked out as under:-

Rs. 86,400/- (as claimed by the petitioner) X 42 works out to Rs. 36,28,800/-.

In addition to the said amount towards pecuniary damages, the petitioner is entitled to damages claimed under the headings 1, 2, 3, 4, 5, 7, 8, 10, 12, 14 & 15 as claimed by the petitioner and reproduced above the petitioner is also entitled to damages for pain, suffering and trauma as a consequence of the injuries sustained on account of the said accident which are quantified at Rs. 3 lakhs in the present case. Thus, the petitioner is entitled to following amounts.

The amount of loss of income

Rs. 36,28,800/-

 
Expenses for taking the injured from the place of occurrence to the Hospital			
 
Rs.       8,000/-
 
Expenses incurred at the Hospital 	
 
Rs.     11,500/-
 
Medicines 
 
Rs.     15,640/-
 
Pathological charges 
 
Rs.       1,670/-
 
Doctor's Fee 
 
Rs.           90/-
 
Expenses incurred in documentation before the Commission 
 
Rs.       4,000/-
 
Expenses in appearing before the Commission 
 
Rs.    10,000/-
 
Expenses in gathering the evidence 
 
Rs.       5000/-
 
Medical treatment for other injuries as certified in the injury report 
 
Rs.     80,000/-
 
Expenses for travelling for appearing before the Commission
 
Rs.      1,000/-
 
Expenses for travelling
 
Rs.      8,000/-
 
Damages for Pain, suffering and Trauma 
 
Rs.  3,00,000/-
 
 Grand Total :
 
Rs.40,73,700/- along with interest at the rate of 8% per annum. 
 

 

The question of amount be paid only in terms of the circular as argued by the respondents are no more res integra and have been considered and decided in the case of Shiv Ranshu Chhuneja (Supra) by a coordinate Bench of this Court with which we agree.

Considering the entire gamut of the case laws as discussed above and the cases referred to above, we are of the view that the order dated 4.12.2008 deserves to be modified with a direction to the respondent Nos. 1 & 2 to grant a compensation of Rs. 40,73,700/- along with interest at the rate of 8% per annum from the date of the accident till the actual payment, within a period of four months from today. The amount, if any, already paid in pursuance to the order dated 4.12.2008 may be deducted from the amount as directed to be paid.

The writ petition is accordingly allowed with the directions as given above.

Order Date :- 26.4.2019

Hasnain