Delhi High Court
Mohd. Sagir vs Bses And Anr on 5 October, 2018
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 05th October, 2018
+ W.P.(C) 5553/2012 & CM APPLs. 16422/2016, 41504/2018
MOHD. SAGIR ..... Petitioner
Through: Mr.Jawaid Hussain Khan, Mr.V.
Elanchozhiyan and Mr.Manzar Anis,
Advocates
versus
BSES AND ANR ..... Respondents
Through: Mr.Ravi Gupta, Senior Advocate with
Mr.Sunil Fernandes and Mr.Arnav
Vidyarthi, Advocates
Mr.Ajay Arora, Mr.Kapil Dutta and
Mr.Rajat Rajoria, Advocates for
SDMC
Mr.Navmeet Kumar and Mr.Vikas
Bhadana, Advocates for R-3
Mr.Satyakam, ASC-GNCTD with
Mr.Mohit Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The petitioner is seeking compensation from BSES (respondent No.1)
and Beer Singh (respondent No.2) for amputation of his right arm due to
electrocution.
2. On 11th October, 2010 at about 06:30 PM, the petitioner came to the
property of respondent No.2 where his uncle was working as a mason when
respondent No.2 asked the petitioner to lift the towel hanging on the grill. As
the grill was in touch with the live wire connected to electric pole
transformer, the petitioner received an electric shock when he touched the
towel. When the petitioner's uncle tried to save the petitioner, he too
received an electric shock and was thrown away at a distance. The
petitioner's uncle and respondent No.2 were somehow able to save the
petitioner. Thereafter, the petitioner was admitted to Safdurjung Hospital
where his right arm was amputated up to shoulder level. The petitioner was
8 year old at the time of accident.
3. The police registered an FIR No.479/2010 dated 11th November, 2010
under Section 338 of IPC at P.S. Mehrauli against respondent No.2. The
Investigating Officer, ASI Shyam Bir appeared before this Court on 08th
January, 2018 and filed the status report, according to which the charge
sheet had been filed against respondent No.2, Beer Singh.
4. Learned counsel for the petitioner submits that respondent No.2 was
negligent in carrying out unauthorized construction in his property up to the
electric pole and was liable to pay the compensation to the petitioner. It is
further submitted that the respondent No.1, BSES is also liable to pay
compensation on account of their failure to take any action in respect of the
electrical wire touching the building of respondent No.2 which was a serious
and potential danger. It is further submitted that petitioner is entitled to
compensation of more than Rs.15,00,000/- but the petitioner restricts his
claim of compensation to Rs.15,00,000/- considering that the evidence
cannot be recorded in writ proceedings. Reliance is placed on State of
Himachal Pradesh v. Naval Kumar, (2017) 3 SCC 115.
5. Learned Senior Counsel for BSES urged at the time of hearing that
accident took place due to negligence and carelessness of respondent No.2
who constructed his terrace up to the electrical pole transformer. It is further
submitted that there was no negligence on the part of BSES.
6. There is no appearance on behalf of respondent No.2. On 08th January,
2018, respondent No.2 had urged before this Court that the accident did not
take place in his property and the petitioner was electrocuted in his own
house and respondent No.2 just accompanied the petitioner to Safdurjung
Hospital on humanitarian ground. The defence of respondent No.2 is false
and is rejected. Respondent No.2 has raised a false claim before this Court
which is an offence under Section 209 of the Indian Penal Code.
7. The SDMC has filed the status report, according to which the property
in which the accident took place is situated in an unauthorized colony. The
said property comprises of the basement, ground floor, first floor, second
floor and third floor. The balcony (chajja) of the said property is very close
to the electrical wire running from the pole which is in fact touching the
building on the first floor. The photographs of the said property have been
placed on record along with the report.
8. The petitioner is present in Court and his condition has been seen. The
petitioner is aged 14 years now and is studying in seventh standard at Delhi
Bal Vidyalaya, Chattarpur Nagar Nigam, Delhi School. The petitioner's
father, present in Court, is a daily wage mason.
9. This Court is of the view that the petitioner suffered electrocution on
11th October, 2010 in the property of respondent No.2 when the petitioner
went there to meet his uncle when respondent No.2 asked him to lift the
towel hanging on the grill and accident occurred due to the negligence of
respondent No.2 who raised an unauthorized construction in his property up
to the pole which resulted in the accident in question. Respondent No.2 is
primarily liable to pay compensation to the petitioner for the accident in
question. So far as respondent No.1 is concerned, there is composite
negligence to the extent of 20% as no action was taken by respondent No.1
after unauthorized construction was carried out by respondent No.2 up to the
electrical pole transformer. It is well settled that in the case of composite
negligence, the victim can recover the compensation from any of the joint-
tort-feasors.
10. The principles for computation of compensation in amputation cases
are well settled. The petitioner is entitled to compensation of more than
Rs.15,00,000/-. However, considering that the evidence cannot be recorded
in these proceedings and the petitioner is restricting his claim to
Rs.15,00,000/-, the claim of Rs.15,00,000/- is upheld as just and fair.
11. In the facts and circumstances of this case, the writ petition is allowed
and compensation of Rs.15,00,000/- along with interest at the rate of 7.5%
per annum w.e.f. the date of filing this petition i.e. 28th August, 2012 is
awarded to the petitioner.
12. The petitioner has already received compensation of Rs.2,50,000/-
from DSLSA under the Victim Compensation Scheme in terms of orders
dated 22nd February, 2018, 21st March, 2018 and 03rd May, 2018. The
aforesaid amount is liable to be adjusted toward the total compensation
amount and interest awarded hereinabove.
13. Respondent No.1, BSES is directed to deposit the balance
compensation amount along with interest with Registrar General of this
Court within four weeks from today.
14. Respondent No.1, BSES is granted recovery rights to recover the
compensation amount with respect to 80% of the award amount, after
depositing the entire compensation amount with interest with the Registrar
General of this Court.
15. In the event of failure of respondent No.2 to pay the 80%
compensation amount to respondent No.1; Respondent No.1 is entitled to
recover the same by executing this order as a decree against respondent no.2.
16. List for disbursement of the compensation amount to the petitioner on
16th November, 2018.
17. The petitioner is directed to remain present in Court on the next date
of hearing along with the passbook of his savings bank account near the
place of his residence as well as PAN card and Aadhaar card. The concerned
bank of petitioner is directed not to issue any cheque book or debit card to
petitioner and if the same have already been issued, the bank is directed to
cancel the same and make an endorsement on his passbook to this effect.
Petitioner shall produce the copy of this order to his concerned bank,
whereupon the bank shall make an endorsement on the passbook of
petitioner that no cheque book and/or debit card shall be issued to petitioner
without the permission of this Court. However, the concerned bank shall
permit petitioner to withdraw money from his savings bank account by
means of a withdrawal form. Petitioner shall produce the original passbook
of their individual savings bank account with the necessary endorsement on
the next date of hearing.
18. This Court appreciates the assistance rendered by Mr. Ravi Gupta,
learned senior counsel for respondent No.1.
19. Pending applications are disposed of.
20. Copy of this judgment be given dasti to counsels for the parties under
signatures of the Court Master.
OCTOBER 5, 2018 J.R.MIDHA, J.
ds
