Shyam Sunder Sharma & Anr. vs Delhi Jal Board & Ors
2018 Latest Caselaw 1384 Del

$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision: 27th February, 2018

+      W.P.(C) 11413/2015

       SHYAM SUNDER SHARMA & ANR.             ..... Petitioners
                   Through: Mr. Sanjev Mehta, proxy counsel for
                            Ms. Aruna Mehta, Advocate

                         versus

       DELHI JAL BOARD & ORS                     ..... Respondents
                     Through: Mr. Sushil Kumar Singh and Ms.
                              Sahiba Pantel, Advs. on behalf of Ms.
                              Sangeeta Bharti, ASC for R1/DJB.
                              Ms. Sangeeta Bharti, ASC for Delhi
                              Jal Board
                              Mr. Ravi Gupta, Senior Advocate
                              with Mr. Arnav Vidyarthi, Advocates
                              for BSES
                              Mr. Arjun Pant, Advocate for DDA
                              Mr. Satyakam, ASC for GNCTD with
                              Mr. Shashwat Parihar, Advocate with
                              and Mr. Manoj Kumar, Electrical
                              Oficer, ASI Tulli Ram, P.S. Badarpur
                              Mr. Kapil Dutta and Mr. Ajjay
                              Aroraa, Advocates for SDMC.

       CORAM:
       HON'BLE MR. JUSTICE J.R. MIDHA
                          JUDGMENT (ORAL)

1. The petitioners are the parents of Master Saurabh Sharma who died due to electrocution on 15th August, 2015. The petitioners are seeking compensation for the death of their son, Saurabh.

2. On 15th August, 2015 at about 07:00 P.M., Saurabh Sharma aged about 10 years was running in the park at Badarpur to catch a kite which was going towards submersible pump of Delhi Jal Board. The ground was slippery due to rain on the previous day due to which Saurabh slipped and his body came in the contact with the control panel board of Delhi Jal Board which was having electrical current due to which Saurabh was electrocuted and he fell down near the pump. Saurabh was detached from the control panel board by a neighbour with the help of wooden sticks and was taken to Holy Family Hospital where he was declared as brought dead. Police registered FIR No.526 dated 16th August, 2015 under section 304A IPC at P.S. Badarpur.

3. The Electrical Inspector inspected the site of the accident on 18th October, 2015 and submitted his report dated 20 thOctober, 2015 which is on record as Annexure D. As per the report of the Electrical Inspector, the supply of the electricity to the submersible pump and motor was not having an earth leakage protective device and the three core flat cable from the electrical panel board to the submersible pump was not protected against any mechanical injury by providing a metal casing or metallic covering. Relevant portion of the report of the Electrical Inspector is reproduced hereunder: -

Sub: Fatal accident of Master Saurabh Sharma occurred at DDA park near DDA colony Badar pur New Delhi on 15/08/2015.

Ref Case FIR no 526 dated 16/08/2015 u/s 304A IPC PS Badar pur New Delhi.

The information about the said accident was given to this office by Shri Dhananjay Kumar sub inspector police station

Badarpur on 17/08/2015 with a request to inspect the place of accident.

As per directions of the Deputy Electrical Inspector, the site of accident was inspected by the under signed on 18/08/2015 in the presence of shri Dhananjay Kumar Sub Inspector police station Badarpur, Shri Udia veer Singh Assistant Engineer and Naveen Guher Junior Engineer Delhi Jal Board, Mohd Arif Assistant Manager BSES RPL and Shri Ram Kishan Supervisor SDMC New Delhi.

During the course of investigation it was reported that on 15/08/2015 Master Saurabh Sharma while trying to fetch a kite received an electric shock from the electric panel board installed at DDA park near DDA colony Badar pur New Delhi which proved fatal. Further, it was reported that there was water logging in the park after the heavy rain in the evening of 15/08/2015.

At the time of inspection a submersible pump of Delhi Jal board was found installed in the DDA park near DDA Colony BadarPur New Delhi. The electric supply to the said pump had been controlled through an electric panel board installed nearby alongside boundary wall of the said park. There were 2 numbers of three core flat cables laid from electric panel board to submersible pump motor which was just lying on the ground and had not being protected against any mechanical injury. The insulation resistance of the electrical installation of the said electric panel board was tested with 500V insulation testor (Meggar) and its insulation resistance was found about 10 Mega Ohms.

As it has been reported that there was a water logging in the park due to heavy rain on the day of accident so there is every possibility of an accident to have happened, if any leakage of the electric current flow in electrical installation of

the said electric panel board or submersible pump along with supply leads under the wet condition by not providing earthing on the said electric penal board and submersible pump and earth leakage protective device (ELCB) So as to cut off the supply instantly.

At the time of inspection the following provisions of central electricity Authority (measure relating to safety and electricity supply) Regulation 2010 had not been found complied with by the Delhi Jal board:

1. The metallic body of the said electric panel board had not been connected by two separate and distinct connections with earth for production against any leakage of electric current in contravention of the provisions of regulation 41 (xii) of the said regulations.

2. The supply of electricity to the said submersible pump and motor was not found controlled through an earth leakage protective device so as to disconnect the electric supply instantly on the occurrence of the earth fault or leakage of current in contravention of the provisions of the regulation 42 of the said regulations.

3. The 3 core flat cable laid from the said electric panel board to submersible pump motor had not been protected against any mechanical injury by providing mechanically strong metal casing or metallic covering in contravention of the provisions of regulation 12(i) read with 37(i) of the said regulation."

(Emphasis supplied)

4. S.I. Rajendra Singh from P.S. Badarpur has produced the record of the criminal case according to which the charge sheet has been filed in FIR No.526/2015, P.S. Badarpur against Naveen Guher, J.E. of Delhi Jal Boad

and Banwari Singh, Pump Operator of Delhi Jal Board. The learned Metropolitan Magistrate has framed the charge against the aforesaid two accused persons and the trial is pending and the next date of hearing is 09 th May, 2018. English translation of the relevant portion of the charge sheet is reproduced hereunder: -

During the investigation, SI Dhananjay Kumar sent Notice to the JE/BSES and called him to the Police Station and interrogated him who disclosed during the interrogation that that Electronic Point Board fell under the Delhi Jal Board. The SI sent Notice to the AE of Delhi Jal Board and called him who disclosed during the interrogation that the Area In-charge of tube-well No. 166 was Shri Naveen Guher JE. Even the JE/NDMC was served Notice and was called who stated that the responsibility of that tube-well was that of the Delhi Jal Board and his responsibility was only regarding the plants and trees. Banwari Lal, APD, Ward No.203 did the work of tube-well with Naveen Guher, the AE/Delhi Jal Board. This incident had occurred at that tube-well on 15/08/2015 when both of these people were deputed there. In the meanwhile, the SI got transferred and the case file was entrusted with me, the SI as per the order of the SHO and I was asked to conduct further investigation. I, the SI duly arrested tube-well operator Banwari Singh S/o Khoob Singh, Address- Column No.11 in connection with this Case when evidence sufficient for his arrest got collected during the investigation. His brief sketch was prepared and was attached with the sentence slip. And JE Naveen Guher was asked to co-operate with the investigation by way of sending him Noitce u/s 41.1, Cr.PC in connection with this case. When he joined the investigation, he was freed just on being bound and without any arrest. In order to obtain the opinion, the FSL report and the PM Report are filed in the AIIMS. Till now the opinion has not been obtained from the AIIMS. Supplementary Charge-sheet shall be produced in the

Court once the opinion is received. Evidence sufficient for preparing charge-sheet against Banwari Lal s/o Khoob Singh, R/o. Column No.11 and JE Naveen Guher S/o. Kishan Pal, R/o. Coloumn No.11A have been collected during the investigation so far and have been recorded on the pages of the file. Therefore, charge-sheet is being prepared in connection with this case and is being sent. The witnesses may be summoned and the accused may be sent Notice and the hearings of the case may be started. Accused Banwari Lal has been granted bail by the Police in this case and accused Naveen Guher has not been arrested."

5. DDA has filed counter affidavit according to which DDA handed over the entire area in question to South Delhi Municipal Corporation.

According to DDA, Delhi Jal Board was responsible for supply of water to the residents of the DDA flats and maintenance of electric submersible pump installed by it.

6. South Delhi Municipal Corporation impleaded as respondent No.4 on 11th December, 2017 denies any kind of liability in respect of the accident in question.

7. BSES was impleaded as respondent No.5 on 08th January, 2018. According to BSES, the submersible pump as well as service cable from which the electricity leaked belongs to Delhi Jal Board and Delhi Jal Board alone is responsible for the accident in question. BSES relies upon the report of the Electrical Inspector.

8. Delhi Jal Board has filed the counter affidavit. Delhi Jal Board admits that the submersible pump belongs to Delhi Jal Board. However, the liability to pay the compensation is disputed by Delhi Jal Board. According to Delhi Jal Board, the electrical supply to the main switch of submersible

pump was disconnected on 14th August, 2015 on a complaint received from the residents. According to Delhi Jal Board, the staff of BSES appear to have done some work on 16th August, 2015 and therefore, BSES was responsible. Delhi Jal Board relies on investigation report dated 29th February, 2016. Without prejudice, it is submitted that the Delhi Jal Board be granted the recovery rights to recover the compensation amount from BSES. The relevant portion of the counter affidavit of Delhi Jal Board is reproduced hereunder: -

"1. It is stated for record that a complaint was received on 14.08.2015 by Junior Engineer (E&M) of the answering respondent, from the residents surrounding the DDA park, DDA Flats, Badarpur that a tube well was not working. Accordingly, the JE (E&M) directed Shri Banwari Singh, Assistant Pump Driver (APD)/Electrician to attend to the said complaint. After inspection, the APD found that submersible pump was faulty and it required replacement. This was accordingly informed to the residents and it was further informed that the said submersible pump will be replaced on 17.08.2015. The said APD also informed the concerned Junior Engineer (E&M) about the said situation, on which the JE (E&M) immediately directed him to disconnect the electric supply from the main switch, which.

2. On 15.08.2015 an unfortunate incident happened in which the son of the Petitioner was electrocuted near the Tube Well in the aforesaid DDA park, DDA Flats, Badarpur. On receiving the information, the JE(E&M) and the AE (E&M) of the answering respondent, rushed to the site but were unable to enter the premises where the tube well was situated due to gathering of an angry mob.

3. On 17.08.2015 the site was inspected by the Vigilance Team of the Answering Respondent along with the concerned officials of the Division; wherein it was observed by the Vigilance Team that the operating panel of the tube-well was properly earthed. All the parts of the panel such as Main Switch, Starter and Protector were found properly enclosed inside the MS panel enclosure. The cables inside the DJB panel were found properly fitted. During investigation/inspection the Vigilance Team also found some pieces of PVC wire/ Strips of BSES cable near the panel and at BSES electric pole, about which the residents informed the Vigilance Team that some repair/renovation work on BSES Cable of the panel was carried out by BSES Staff on 16.08.2015 i.e. the next date after the date of incident. It is pertinent to mention that such act of repair/renovation conducted by BSES appears to have erased the evidence from the site which would have proved that the bare unattended electric wires belonged to BSES.

4. In view of the aforestated circumstances. it is denied that the duty on the part of the officials of the Answering Respondent by keeping the panel board of submersible pump naked and live. It is submitted that earthing of the wires of the submersible pump were provided through GI earth wires from the answering respondents electric panel board to the Tube Well/ Borewell, which was about 450 ft. deep approx. It is further submitted that a vigilance team comprising of officials from answering respondent's departments inspected DJB panel and found that the operating panel of the tube-well was properly earthed. All the parts of the panel such as Main Switch, Starter and Protector were found properly enclosed inside the MS panel enclosure. The cables inside the DJB panel were found properly fitted. Be that as it may the answering respondent's Maintenance Team had already disconnected the main switch on 14.08.2015. Therefore, it is respectfully submitted that there

was no negligence on the part of answering respondent in the unfortunate incident which happened on 15.08.2015."

9. Learned senior counsel for BSES disputes any liability of BSES on the ground that BSES has not done any act so as to warrant any liability of BSES.

10. This Court is of the view that the primary liability to pay the compensation to the petitioners is of Delhi Jal Board and Delhi Jal Board is at liberty to initiate appropriate legal proceedings against any other person/authority against whom they consider liable.

11. The deceased Saurabh Sharma was aged 10 years at the time of the accident. The petitioner No.1, father of the deceased, was running a grocery shop at Badarpur in a rented premises from where he was evicted in June, 2016 and petitioner No.1 is now working with a carpenter earning Rs.10,000/- per month. Petitioner No.2, mother of the deceased, is working as a maid servant and she claims to be earning Rs.10,000/- per month. The petitioners' claim to be staying in a rented accommodation and have three minor children who are studying in a school in Badarpur.

12. In Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100 the Supreme Court awarded compensation of Rs.7,50,000/- to the victims below 20 years and Rs.10 lakh to victims above 20 years of age by applying the multiplier method. The relevant portion of the Supreme Court judgment is as under:

"38. ... It can be by way of making monetary amounts for the wrong done or by way of exemplary damages, exclusive of any amount recoverable in a civil action based on tortuous liability.

But in such a case it is improper to assume admittedly without any basis, that every person who visits a cinema theatre and purchases a balcony ticket should be of a high income group person. In the year 1997, Rs. 15,000 per month was rather a high income. The movie was a new movie with patriotic undertones. It is known that zealous movie goers, even from low income groups, would not mind purchasing a balcony ticket to enjoy the film on the first day itself. To make a sweeping assumption that every person who purchased a balcony class ticket in 1997 should have had a monthly income of Rs. 15,000 and on that basis apply high multiplier of 15 to determine the compensation at a uniform rate of Rs. 18 lakhs in the case of persons above the age of 20 years and Rs. 15 lakhs for persons below that age, as a public law remedy, may not be proper. While awarding compensation to a large group of persons, by way of public law remedy, it will be unsafe to use a high income as the determinative factor. The reliance upon Neelabati Behera (AIR 1993 SC 1960) in this behalf is of no assistance as that case related to a single individual and there was specific evidence available in regard to the income. Therefore, the proper course would be to award a uniform amount keeping in view the principles relating to award of compensation in public law remedy cases reserving liberty to the legal heirs of deceased victims to claim additional amount wherever they were not satisfied with the amount awarded. Taking note of the facts and circumstances, the amount of compensation awarded in public law remedy cases, and the need to provide a deterrent, we are of the view that award of Rs. 10 lakhs in the case of persons aged above 20 years and Rs. 7.5 lakhs in regard to those who were 20 years or below as on the date of the incident, would be appropriate. We do not propose to disturb the award of Rs. 1 lakh each in the case of injured. The amount awarded as compensation will carry interest at the

rate of 9% per annum from the date of writ petition as ordered by the High Court, reserve liberty to the victims or the LRs. of the victims as the case may be to seek higher remedy wherever they are not satisfied with the compensation. Any increase shall be borne by the Licensee (theatre owner) exclusively."

13. In UPSRTC v. R.K. Sachdeva, MAC. APP. 182/2008 decided on 23rd December, 2016, this Court, applying Uphaar Tragedy case, enhanced the compensation in respect of a 18 year old child from Rs.3,42,000/- to Rs.10 lakh considering that Uphaar Tragedy took place in the year 1997 whereas the accident in question took place on 04th May, 2003.

14. Chiranji Lal v. DDA, W.P.(C) 12087/2015 decided on 13th July, 2017 relates to the death of a minor child aged 11 years due to the falling of an iron gate of a DDA park on him. Vide order dated 21st July, 2016, this Court constituted a Committee presided by Mr. Sanjay Jain, learned ASG to consider formulating a policy guidelines for payment of a fixed ex-gratia compensation in such cases. The Committee appointed by this Court recommended the payment of compensation of Rs.10 lakh in death cases and Rs.5 lakh in case of permanent disability in pursuant to which DDA approved the payment of ex-gratia compensation of Rs.10 lakh to the petitioners on no fault liability and the said amount has been disbursed to the parents of the deceased.

15. Sohan Lal v. Government of NCT of Delhi, W.P.(C) 2584/2008 decided on 23rd November, 2017 relates to the death of a 6 year old child and injury to a 4 year old child playing in the street by electrocution. This Court awarded compensation of Rs.10 lakh in respect of the death of a 6 year old child and Rs.1,50,000/- to the injured child.

16. In the facts and circumstances of this case, the writ petition is allowed and compensation of Rs.10,00,000/- along with interest @ 7.5% per annum from the date of filing of this writ petition i.e. 30th November, 2015 up to the realization is awarded to the petitioners against the respondent No.1. Respondent No.1 is directed to deposit the amount awarded by this Court with the Registrar General of this Court within three weeks from today. After depositing the compensation amount, Delhi Jal Board would be at liberty to initiate appropriate legal proceedings against BSES Yamuna Power Ltd, South Delhi Municipal Corporation and/or any agency, who they consider responsible, in accordance with law.

17. List for disbursement of the compensation amount on 22 nd March, 2018 at 02:30 P.M.

18. The petitioners shall remain present in the Court on the next date of hearing along with the passbooks of their savings bank accounts and other documents in terms of the para-5 of the order dated 08th January, 2018.

19. This Court appreciates the assistance rendered by the learned counsels for the parties in this matter.

20. Copy of this judgment be given dasti to learned counsels for the parties under signature of Court Master.

FEBRUARY 27, 2018                                       J.R. MIDHA, J.
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