Allahabad High Court
Surendra Pratap And Others vs State Of U.P. Thru Collector ... on 20 May, 2022
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Court No. - 19
Case :- WRIT - C No. - 1002174 of 2015
Petitioner :- Surendra Pratap And Others
Respondent :- State Of U.P. Thru Collector Sultanpur And Others
Counsel for Petitioner :- Shiva Nand Pandey
Counsel for Respondent :- C.S.C.,Mohd.Murtaza Khan,Prashant Arora,Vashu Deo Mishra
AND
Case :- WRIT - C No. - 1002173 of 2015
Petitioner :- Smt. Parana Devi and others
Respondent :- State Of U.P. Thru Collector Sultanpur And Others
Counsel for Petitioner :- Shiva Nand Pandey
Counsel for Respondent :- C.S.C.,Mohd.Murtaza Khan,Prashant Arora,Vashu Deo Mishra
Hon'ble Pankaj Bhatia,J.
1. Heard learned Counsel for the petitioners as well as Sri Indrajeet Shukla, learned Additional Chief Standing Counsel appearing on behalf of the State and Sri Vasudeo Mishra, who appears on behalf of the respondents no.3 and 4.
2. The facts that emerged from Writ-C No.1002174 of 2015 are that one Sri Amit Kumar Pandey died on account of coming into contact with live wire on 12.10.2011 at 08:45 AM due to electric shock. It is also on record that with regard to the incident, an FIR was registered as Case Crime No.358 of 2011, under Section 304A of the IPC against the officers of the electricity department on account of the death of Sri Amit Kumar Pandey. The petitioners made several applications for grant of compensation but the same was not done. It is specifically pleaded in para 8 of the writ petition that with regard to the live wires, a complaint was also made to the electricity department and apprehension was also expressed that the improper laying of electricity lines and that too fraudulently can lead to an accident anytime which can result in loss of life and property.
3. As no compensation was paid by the electricity department, an application was filed under the Public Liability Insurance Act, 1991 (in short ' the PLI Act') before the District Magistrate wherein it was stated that at the time of accident, the age of the deceased Amit Kumar Pandey was 23 years and was earned Rs.9,000/- per month. It was also stated that Amit Kumar Pandey was survived by his father, mother, wife and two minor children. It was also stated that on the date of incident i.e. 12.10.2011 at about 08:45 AM, the deceased was working along with his uncle Brijesh Pandey. While going to the field, the uncle of the deceased came in contact with the electricity and when the deceased tried to save him, he got electrocuted and died. It is also recorded that after the death of Amit Kumar Pandey, postmortem was also conducted. The cause of death as shown in the postmortem report is shock as a result of electrocution.
4. The facts that emerge from Writ-C No.1002173 of 2015 are that as per the allegations one Brijesh Pandey died in the same incident in which Amit Kumar Pandey also died arising out of electrocution, as such, a claim petition was filed under Section 6 of the PLI Act before the District Magistrate alleging that the claimants i.e. father and mother were entitled for compensation on account of death of Brijesh Pandey. It is stated that he also died in the incident which took place on 12.10.2011 in which Amit Kumar Pandey died. An FIR was lodged and a postmortem was conducted over the body of Brijesh Pandey which discloses the cause of death as shock as a result of electrocution. It was alleged that late Brijesh Pandey was aged about 28 years and was earning Rs.9000/- per month and on the application of the claimants petitioners herein, the District Magistrate granted compensation of Rs.1,00,000/- (Rupees One Lac) vide order dated 13.03.2015 on the same reasoning as contained in the award passed in the case of Amit Kumar Pandey.
5. The Counsel for the petitioners argues that the amount of compensation as awarded by the District Magistrate amounting to Rs.1,00,000/- (Rupees one lac) is arbitrary and cannot be termed as 'just compensation'. He argues that in terms of the mandate of Section 6 of the PLI Act, it was incumbent upon the authority to award 'just compensation' after an inquiry which the District Magistrate has failed to do. He argues that the District Magistrate has merely followed a Government Order by awarding Rs.1,00,000/- (Rupees one lac) as compensation which is neither provided under the Act nor under the Rules and thus, it is prayed that the amount as awarded on 13.03.2015 be enhanced and the petitioner be paid just compensation for which he is entitled in accordance with law.
6. In support of the said submissions, the petitioner places reliance on the judgment of this Court in the case of Bheem Sen vs State of U.P. and others; 2019 (6) ADJ 586 whereby this Court after considering the two earlier judgments of the High Court as well as the judgment of the Hon'ble Supreme Court had proceeded to award the compensation of Rs.40,00,000/- (Rupees forty lac). He also places reliance on another judgment of this Court in the case of Yas Pal Singh (Minor) and another vs State of U.P. and others; 2017 (5) ADJ 696. He also drawn my attention to the judgment of the Hon'ble Supreme Court wherein considering the provisions of Motor Vehicle Act, the Hon'ble Supreme Court was of the view that it is incumbent upon all the courts to ensure just compensation irrespective of the fact that whether the same is claimed or not.
7. The Counsel for the respondent, on the other hand, argues that as no finding of fault has been recorded, the maximum compensation that could have been paid is provided under Section 3 of the Act and in terms of the Schedule of the said Act. The petitioners could be paid only Rs.25,000/- (Rupees Twenty Five Thousand), however, in terms of the Government Order issued by the concerned Department, an amount of Rs.1,00,000/- (Rupees one lac) has been paid, thus, the order of the District Magistrate cannot be termed as arbitrary. He further argues that in any case, no inquiry to the quantum of compensation has been done by the District Magistrate.
8. The Counsel for the respondent places reliance on the judgment of this Court passed in the case of U.P. Power Corporation Limited and others vs District Magistrate/ Collection, Sultanpur and others decided on 07.09.2021 in Writ Petition No.42 (MS) of 2005.
9. In the light of the arguments as raised between the parties, this Court is to consider whether the amount of compensation awarded can be termed as 'just' and whether the court while exercise the power under Article 226 of the Constitution of India can enhance the compensation from the face of pleadings exchanged between the parties?
10. Considering the claim of the petitioners that the incident occurred on account of the negligence of the department, specific pleadings in this regard has been made in para 8 of the writ petition wherein it has been stated that admittedly complaints were made with regard to the improper keeping of the electricity wire and an apprehension had also expressed that the negligent act of the department in not maintaining the electricity can cause accident and loss of life and of property. Annexure-5 of the writ petition is an application moved on 23.11.2006.
11. To elaborate further paragraph 8 of the writ petition and its reply as contained in para 7 of the counter affidavit are quoted hereinbelow:
"8. That in support of his claim, the petitioners have also filed the copy of several applications which were filed by the uncle of the deceased at the time of forceful electric connection over the land of petitioner upon which junior Engineer Electric has been directed to visit the spot and insure no danger took place, but inspite of repeated directions given by the Sub-Divisional Magistrate and Executive Engineer and District Magistrate, Sultanpur nothing has been ensured by Junior engineer Electric and as such due to grass and negligent act of electricity department an incident took place in which the son of petitioner nos. 1 and 2 and husband of the petitioner no.3 and father of the petitioner nos. 4 and 5 died. The copies of the applications moved by the uncle of the deceased before the opposite parties are being annexed herewith collectively as Annexure No.5 to this writ petition.
7. That the contents of paragraph 8 of the writ petition as stated is not correct hence denied."
12. A perusal of the award itself indicates that the stand of the electricity department before the District Magistrate was that one of the residents of the village Ram Samhar had extracted the electricity by extending a cable without the permission of the department in an illegal manner and on receiving the information of the accident, the electricity department had taken steps to stop current flow from the cable. It was also the stand of the department before the District Magistrate that the death had occurred on account of the electrocution, however, it could not be termed as fault of the department. In view of there being specific pleadings, supported by Annexure-5 and there being no specific denial to the said pleadings coupled with the stand taken by the department before the District Magistrate, it can be safely presumed that the department was negligent in not checking unauthorized use of electricity by extension of cables over the area in question.
13. Considering the submissions made at the bar, it is clear that the death occurred on account of electrocution and improper maintenance of the electricity lines by the respondent Corporation which fact has been admitted by the respondents in the stand taken before the District Magistrate, as such, the negligence of the respondent Corporation stands established.
14. The next issue is to decide 'what would be the just compensation'. Specific pleadings in this regard in the form of the petition before the District Magistrate with regard to the age of the deceased, his dependants and his income which according to the petitioners was Rs.9,000/- per month was made.
15. The Counsel for the respondents places heavy reliance on the judgment of this Court in the case of U.P. Power Corporation Limited and others vs District Magistrate/ Collection, Sultanpur and others (supra) wherein this Court after considering the mandate of Sections 3, 7 and 8 of the PLI Act came to the conclusion that the petitioner while filing the claim petition under the Public Liability Insurance Act can be entitled to claim only the compensation as specified in the Schedule as referred to in Section 3 of the PLI Act and claiming compensation of higher amount, the PLI Act, 1991 can be of no avail. It was further held that in the PLI Act, there is no mechanism by which it can be said that the principles for awarding compensation in the case of Motor Vehicles Acts can be applied for computing the compensation under the PLI Act.
16. I have gone through the said judgment and with respect, I differ with it for the reason that from the plain reading of the PLI Act, it is clear that the compensation can be claimed under the said Act under two provisions, firstly under Section 3, which provides for grant of compensation on the principles of 'No fault' and confines to the quantum of compensation to the extent indicated in the Schedule as appended to the Act, however, Section 6 of the Act provides for compensation other than under 'No fault' and empowers the grant of compensation as specified in Section 7 of the PLI Act.
17. In the judgment passed in the case of U.P. Power Corporation Limited and others vs District Magistrate/ Collection, Sultanpur and others (supra), the mandate of Section 6 was not brought to the notice of the Court concerned and as such, the judgment was passed under an impression that the claim can be made and awarded only under Section 3 which is qualified by Sections 7 and 8 of the said Act whereas Section 6 provides for an application other than an application which is prescribed under Section 3 of the PLI Act and in fact, the plain reading of Section 7 makes it clear that the same refers to the application filed under Section 6(1) of the Act.
18. For perusal of Sections 3, 6, 7 and 8 of the PLI Act are quoted below:
"3. Liability to give relief in certain cases on principle of no fault.--(1) Where death or injury to any person (other than a workman) or damage to any property has resulted from an accident, the owner shall be liable to give such relief as is specified in the Schedule for such death, injury or damage.
(2) In any claim for relief under sub-section (1) (hereinafter referred to in this Act as claim for relief), the claimant shall not be required to plead and establish that the death, injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default of any person.
Explanation.--For the purposes of this section,--
(i) "workman" has the meaning assigned to it in the Workmen's Compensation Act, 1923 (8 of 1923);
(ii) "injury" includes permanent total or permanent partial disability or sickness resulting out of an accident.
6. Application for claim for relief. (1) An application for claim for relief may be made -
(a) by the person who has sustained the injury;
(b) by the owner of the property to which the damage has been caused;
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for relief, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application.
(2) Every application under sub-section (1) shall be made to the Collector and shall be in such form, contain such particulars and shall be accompanied by such documents as may be prescribed.
(3) No application for relief shall be entertained unless it is made within five years of the occurrence of the accident.
7. Award of relief.--(1) On receipt of an application under sub-section (1) of section 6, the Collector shall, after giving notice of the application to the owner and after giving the parties an opportunity of being heard, hold an inquiry into the claim or, each of the claims, and may make an award determining the amount of relief which appears to him to be just and specifying the person or persons to whom such amount of relief shall be paid.
(2) The Collector shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section -
(a) the insurer, who is required to pay any amount in terms of such award and to the extent specified in sub-section (2B) of section 4, shall, within a period of thirty days of the date of announcement of the award, deposit that amount in such manner as the Collector may direct;
(b) the Collector shall arrange to pay from the Relief Fund, in terms of such award and in accordance with the scheme under section 7A, to the person or persons referred to in sub-section (1) such amount as may be specified in that scheme;
(c) the owner shall, within such period, deposit such amount in such manner as the Collector may direct.]
(4) In holding any inquiry under sub-section (1), the Collector may, subject to any rules made in this behalf, follow such summary procedure as he thinks fit.
(5) The Collector shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Collector shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) Where the insurer or the owner against whom the award is made under sub-section (1) fails to deposit the amount of such award within the period specified under sub-section (3), such amount shall be recoverable from the owner, or as the case may be, the insurer as arrears of land revenue or of public demand.
(7) A claim for relief in respect of death of, or injury to, any person or damage to any property shall be disposed of as expeditiously as possible and every endeavour shall be made to dispose of such claim within three months of the receipt of the application for relief under sub-section (1) of section 6.
(8) Where an owner is likely to remove or dispose of his property with the object of evading payment by him of any amount of the award, the Collector may, in accordance with the provisions of rules 1 to 4 of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), grant a temporary injunction to restrain such act.]
8. Provisions as to other right to claim compensation for death, etc.--(1) The right to claim relief under sub-section (1) of section 3 in respect of death of, or injury to, any person or damage to any property shall be in addition to any other right to claim compensation in respect thereof under any other law for the time being in force.
(2) Notwithstanding anything contained in sub-section (1), where in respect of death of, or injury to, any person or damage to any property, the owner, liable to give claim for relief, is also liable to pay compensation under any other law, the amount of such compensation shall be reduced by the amount of relief paid under this Act."
19. For the reasons recorded above and the fact that the application in the present case was filed under Section 6 and not under Section 3 of the PLI Act, I do not see any reason to accept the contention of the Counsel for the respondent based upon the judgment passed by this Court in the case of U.P. Power Corporation Limited and others vs District Magistrate/ Collection, Sultanpur and others (supra).
20. Now coming to the quantum of compensation that can be awarded by this Court in the judgment passed in the case of Bheem Sen (Supra) noticed that the liability under a tort in respect of the public undertaking would arise on establishing the legal wrong/ tort. The Court also noticed that for payment of tort compensation besides the remedy of suit, as is available under the common law, various statutes have been enacted for payment of tortious liability such a Motor Vehicles Act (for claims arising out of motor vehicle accidents), Employees Compensation Act (for claiming compensation by employees), PLI Act, Fatal Accidents Act, Consumer Protection Act, to name a few and in the case where liability is claimed against public undertaking which is amenable to writ jurisdiction, the power under Article 226 can be exercised for grant of just and proper compensation. All the forums provided in the above referred Acts basically have been enacted for laying procedures for expeditiously claiming a tortious liability.
21. The Court also noticed the lines of decision where the compensation was granted in the cases of medical negligence and custodial deaths in Nilabati Behera vs State of Orissa; (1993) 2 SCC 746, State of M.P. vs Shyamsunder Trivedi; (1995) 4 SCC 262, People's Union for Civil Liberties vs Union of India; (1997) 3 SCC 433, and Kaushalya vs State of Punjab; (1999) 6 SCC 754, Supreme Court Legal Aid Committee vs State of Bihar; (1991) 3 SCC 482, Jacob George (Dr.) vs State of Kerala; (1994) 3 SCC 430; Paschim Banga Khet Mazdoor Samity vs State of West Bengal; (1996) 4 SCC 37 and Manju Bhatia vs New Delhi Municipal Council; (1997) 6 SCC 370.
22. Although it is true that the principles for grant of compensation under the Motor Vehicles Act have not been made specifically applicable to the grant of compensation under the PLI Act, however, the facts remain that under Section 6 of the PLI Act, the Collector is bound to determine and pay the compensation which is a 'just compensation'. The concept of 'just compensation' has been emphasized from time to time by the courts holding that courts/ tribunals are not only expected to grant 'just compensation', it is the duty of the court to grant 'just compensation' especially when the claim arises out of the socio-economic legislation.
23. In view thereof, I am of the view that the manner of determining the compensation as provided under the Motor Vehicles Act can be taken as a cue to determine and grant compensation in the present case also. The principle of quantum of compensation have been explained in details taken in the context of Motor Vehicles Act by the Hon'ble Supreme Court in the case of National Insurance Company Limited vs Pranay Sethi and others; (2017) 16 SCC 680, wherein the Hon'ble Supreme Court held that for determining compensation, it is required that the following parameters be established, the age of the deceased, the income of the deceased and the number of the dependents. The Hon'ble Supreme Court has further given directions with regard to the claim of compensation on both pecuniary and non-pecuniary heads and specific directions in that regard are contained in para 59 of the said judgment, which reads as under:
"59. In view of the aforesaid analysis, we proceed to record our conclusions:-
59.1. The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
59.2. As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
59.7. The age of the deceased should be the basis for applying the multiplier.
59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
24. In the light of the judgment of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) and others vs Delhi Transport Corporation and another; (2009) 6 SCC 121 as followed in the case of Pranay Sethi (supra), I proceed to determine the compensation payable to the petitioner on account of death of Amit Kumar Pandey and Brijesh Pandey.
25. In the claim petition, it was alleged by the claimants that Brijesh Pandey was aged about 28 years and was unmarried. The mother and the father were dependants on the said Brijesh Pandey. It was also alleged that he earned Rs.9000/- (Rupees nine thousand per month), although, there is no evidence with regard to the earning on record.
26. From the perusal of the documents especially the postmortem conducted on the body of the deceased Brijesh Pandey, which is on record, the age of the deceased has been shown to be 30 years and thus I accept the said age as the age on which the deceased Brijesh Pandey died. As no income proof has been attached, I presume the minimum wages to be earned by the deceased Brijesh Pandey assessed as Rs.4500/- per month. The deceased Brijesh Pandey is unmarried and only the mother and the father were dependent, an addition of 40% is to be made in the income of the deceased in terms of the judgment of the Pranay Sethi's case (Supra) towards future prospects. At the time of death, the age of the victim is 30 years, thus multiplier '17' is applied. The deceased was unmarried, therefore, 50% will be deducted towards personal expenses in view of the judgnent of the Hon'ble Supreme Court in the case of General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas; 1994 (2) SCC 176. The dependents of Brijesh Pandey are entitled for compensation as per the calculation made hereinunder:
Sl.
No.
Head
Amount
Monthly Income of the deceased
Rs.4500/- per month
Adding 40% towards future prospect
Rs.4500+1800 = Rs.6300/-
Net yearly income
Rs.6300 x 12 = Rs.75600/-
Deducting 50%
Rs.75600 x 50% = Rs.37800/-
Applying multiplier of '17' at the age between 26 to 30 as per Sarla Verma's case
Rs.37800 x 17 = Rs.6,42,600/-
6.
Amount under the conventional heads [loss of estate Rs.16,500/-, loss of consortium Rs.45,000/- (each of dependents); Rs.45,000 x 2 = Rs.90,000/- and funeral expenses Rs.16,500/-) as per Pranay Sethi (Supra)]
Rs.16,500 + Rs.90,000 + Rs.16,500 =Rs.1,23,000/-
7.
Total amount of compensation payable to the dependents of the deceased
Rs.6,42,600+Rs.1,23,000 = Rs.7,65,600/-
27. Thus, in Writ-C No.1002173 of 2015, the petitioners are entitled for payment of compensation of Rs.7,65,600/- along with interest @ 6% from the date of accident i.e. 12.10.2011 up to actual payment/ realization.
28. In the case of Amit Kumar Pandey, the age as disclosed in the postmortem report is 28 years. The income although alleged to Rs.9000/- per month has not been established by evidence, as such, I presume the minimum wages to be earned by the deceased was Rs.4500/- on which enhancement of 40% is permissible as future prospect. The petitioner is survived by his wife, two minor children, mother and father, hence, the deduction of 1/4th of his income is permissible in view of law laid down in Pranay Sethi (Supra). At the time of death, the age of the victim is 28 years, thus multiplier '17' is applied. The dependents of Amit Kumar Pandey are entitled for compensation as per the calculation made hereinunder:
Sl.
No.
Head
Amount
Monthly Income of the deceased
Rs.4500/- per month
Adding 40% towards future prospect
Rs.4500+1800 = Rs.6300/-
Net yearly income
Rs.6300 x 12 = 75600/-
Deducting 1/4th towards personal expenses
Rs.75600 x 25% = Rs.18900/-
After deduction
Rs.75600-Rs.18900 = Rs.56700/-
Applying multiplier of '17' at the age between 26 to 30 as per Sarla Verma's case
Rs.56700 x 17= Rs.9,63,900/-
6.
Amount under the conventional heads [loss of estate Rs.16,500/-, loss of consortium Rs.45,000/- (each of dependents); Rs.45,000 x 5 = Rs.2,25,000/- and funeral expenses Rs.16,500/-) as per Pranay Sethi (Supra)]
Rs.16,500 + Rs.2,25,000 + Rs.16,500 =Rs.2,58,000/-
7.
Total amount of compensation payable to the dependents of the deceased
Rs.9,63,900 + Rs.2,58,000/- = Rs.12,21,900/-
29. Thus, in Writ-C No.1002174 of 2015, the petitioners are entitled for payment of compensation of Rs.12,21,900/- along with interest @ 6% from the date of accident i.e. 12.10.2011 up to actual payment/ realization.
30. For the reasons recorded above, both the writ petitions are disposed off.
Order Date :-20.05.2022
akverma (Pankaj Bhatia, J)
