Jammu & Kashmir High Court

Pronounced On: 19 .03.202 vs State Of J & K & Ors on 19 March, 2021

              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU
                        (Through Video Conferencing)
                                        ...
                              OWP (C) No.1/2013
                                IA No.1/2013

                                                 Pronounced on: 19 .03.2021
     Kamlo Devi
                                                             .......Petitioner

                                    Through: Mr. Vikas Mangotra, Advocate

                                    Versus
     State of J & K & Ors.
                                                          ......Respondent(s)
                                    Through: Mr. F.A.Natnoo, AAG.

CORAM:
            HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

                              JUDGEMENT

1. The petitioner's husband late Sh. Kartar Chand died of electrocution by

high intensity electric line on 25-07-2011 at Bajalata, Jammu. The

deceased was a skilled labour and used to work as Mason, and on the

fateful day, the deceased was working on the roof of the house of one

Puran Chand S/O Mangal Das R/O Pargalta, Jammu at around 6.45

A.M, due to non-maintenance of the high intensity electric line nearby,

the deceased suffered sudden electric shock resulting in serious

injuries which led to his death on way to Government Medical College,

Hospital, Jammu.

2. An FIR No. 212 of 2011 was also registered in Police Station, Nagrota

under Section 304-A RPC against the concerned officials of Power

Development Department. The post mortem examination was

conducted on the body of the deceased by the Department of Forensic

OWP (C) No.1/2013 IA No.1/2013

Medicine and Toxicology, Government Medical College, Hospital,

Jammu on 25-07-2011. As per the post mortem report, the expert

opined that "death in this case was due to shock as a result of

electrocution". It is submitted that petitioner's husband died due to

non-maintenance of high intensity electric line and this negligence of

the respondents has resulted in his death.

3. The petitioner, thus, seeks compensation from the respondents for the

death of her husband due to electrocution for the negligence of the

respondents. It is submitted that the deceased was the sole earning

member and the petitioner has three sons and one married daughter who

were dependent upon him, and they have no other means of sustenance.

Immediately after the death of her husband, the petitioner approached

the respondents for grant of compensation to her but the same was

denied, therefore, she has approached this Court for issuance of a writ

in the nature of Mandamus, commanding the respondents to

compensate the petitioner to the tune of Rs.25,00,000/- alongwith

interest on account of the death of her husband due to electrocution due

to the negligence of the respondents.

4. The death of deceased-Kartar Chand by electrocution is admitted by the

respondents, but they have denied their liability to pay compensation to

the petitioner by stating that there was no negligence on their part. The

respondents also 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. It is further

averred that the construction work was being conducted illegally by the

OWP (C) No.1/2013 IA No.1/2013

deceased during the night hours near the High Tension Line, that too,

without informing the department, therefore, no negligence can be

attributed to the respondents.

5. This apart, the respondents have also 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 on

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, if any, to be paid

to the petitioner would be only in terms of these Government

Orders.

6. The maintenance of electric supply line in the area is that of the

State & its functionaries, they are under an obligation to maintain

their electric lines alongwith all its equipment. A strict and absolute

duty is cast upon them to maintain the same. The transmission and

distribution of the energy should be in a manner, so that the energy

transmitted by them does not cause injury or loss to anyone who

unknowingly gets trapped in it. Liability under law of torts is to

compensate for the injury suffered by any person irrespective of any

negligence or carelessness on their part. An authority undertaking

activity involving hazardous or risky exposure to human life is

liable under law to compensate for the injuries suffered by any

person irrespective of any negligence or carelessness on the part of

those responsible for supply of electricity energy. It is very

OWP (C) No.1/2013 IA No.1/2013

foreseeable risk in the nature of such an activity due to which such

a liability is casted upon such a person or authority who undertakes

such activity. It is known as "Strict Liability or 'Absolute liability,

therefore, the respondents are duty bound to compensate the

petitioner for the death of her husband.

7. The Hon'ble Supreme Court, while dealing with this doctrine in M.

C. Mehta & anr. vs. Union of India & ors., 1987 (1) SCC 395

has held as under: -

"Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher (M. C. Mehta vs. Union of India reported as (1987) 1 SCC 395)."

8. The question is whether writ petition can be entertained for granting

compensation to the petitioner for the death of her husband is, thus,

no longer re integra, in view of the legal position and law as laid

down in Mustaq Ahmed & ors. vs. State of Jammu & Kashmir &

ors., reported in AIR 2009 JK 29 and Joginder Singh v. State of

J&K & ors, reported in AIR 2011 (1) JKJ 722. This court, while

dealing with the issue, it was held in Mustaq Ahmed's case, supra as

under:-

"13. The question that, therefore, falls for consideration is as to whether even in such type of cases, where death or injury is caused because of leakage of electric energy

OWP (C) No.1/2013 IA No.1/2013

by the State engaged in supply of electric energy, which, no doubt, poses a potential threat to the safety of living beings, if not would be debarred from invoking extra ordinary civil writ jurisdiction of the Court when the electrocution had taken place because of no fault of the victim".

9. Further this Court in Mustaq Ahmed's case supra discussed para-

26 of the judgment of the Hon'ble Supreme Court in SDO Grid

Corporation's case, AIR 2005 SC 3971, which is reproduced as

under;

"26. After referring to all the judgments, in our consideration view, the ratio of the judgment handed down by the Apex Court in SDO Grid Corporation's case, AIR 2005 SC 3971 (supra) relied upon by Mr. Thakur and also made the basis for rejection of all the three writ petitions filed by the appellants, does not whittle down the law laid down by the Apex Court in M.P. Electricity Board's case, AIR 2002 SC 551 as in SDO Grid Corporation's case, AIR 2005 SC 3971 (supra), the Apex Court considered the earlier decision rendered in M.P. Electricity Board's case and without affecting the principle of "strict liability" distinguished the said judgment on the ground that the question of negligence was determined by Civil Court.

Therefore, it can be reasonably understood that M.P. Electricity Board's case has been distinguished on its own facts and the Hon'ble Supreme Court has not taken any contrary view from the one already taken with regard to the doctrine of "strict liability" as discussed in extenso in the judgment of Constitution Bench of Supreme Court in M.C. Mehta's case, AIR 1987 SC 1086(supra)."

OWP (C) No.1/2013 IA No.1/2013

10. The admitted position is that the deceased-Kartar Chand died due

to electrocution while working in the house of Puran Chand at

Pargalta, Jammu, as a result of high voltage transmission line. The

Police department registered an FIR No.212 at Police Station,

Nagrota under section 304-A RPC against the functionaries and

the concerned officials of the Power Development Department.

11. The post-mortem examination was conducted by the Government

Medical College, Jammu and from the perusal of the report, it

clearly reveals that the cause of the death of the deceased was due

to electric shock. In such circumstances, the plea of the

respondents that they are not liable to compensate the petitioner

for the death of husband of the petitioner is without any substance.

The State which is dealing in the hazardous activity of

transmission of high voltage electric energy, was in law, bound to

take requisite safety measures, so that the person does not get

electrocuted with the transmission of high voltage electric line as

the electric energy that, by its nature, is prone to cause loss and

damage, respondents while dealing with high voltage electric line,

should have taken safety measures, so that there is no result to any

loss. They were also bound to take other requisite precautionary

measures. This having not been done, as such, respondents are

liable to compensate the petitioner for the death of her husband,

therefore, the plea that the respondents are not liable to pay any

OWP (C) No.1/2013 IA No.1/2013

compensation to the petitioner for the death of her husband, is

misconceived and the same is rejected.

12. Thus in view of the admitted facts and the settled position of law,

no question of fact arises for determination in this case because the

liability of the death of Kartar Chand, who has been electrocuted,

is based on the principle of strict liability. The respondents have

failed to ensure proper distance of High Tension wire, so that no

person carrying any work beneath the same would suffer. The

respondents are, thus, liable to compensate the petitioner.

13. The next question to be considered is that, what would be the

amount of compensation, the petitioner would be entitled to on

account of the death of Kartar Chand. The age of the deceased-

Kartar Chand at the time of his death was 56 years and certificate

in this regard is enclosed herewith. The income of the deceased as

stated in the petition as Rs.20,000 per month, but no proof

regarding his income is on record. Thus, to determine the exact

compensation to which the petitioner is entitled to would be

difficult. The same, however, can be considered according to the

Policy framed by the respondents for grant of ex-gratia relief.

14. As per policy by the Government of J&K for grant of ex-gratia

relief to the departments/non-departmental persons, who are

kill/grievously incapacitated due to electric shocks and accidents.

Government Order No. 328-PDD of 2011 dated 24.11.2011,

coverage under the scheme; 3. Rates of ex-gratia relief: (i) in case

of death, the sum of ex-gratia relief is Rs. 3 Lakh only. This as per

OWP (C) No.1/2013 IA No.1/2013

the respondents is to be read with Government Order No. 454-F of

2019 dated 24.10.2019 reads as under:-

Sanction is hereby accorded to the following amendments in the Jammu and Kashmir Book of Financial Powers:-

In the Book of Financial Powers in Chapter 5.9 against S.No. ~23-A(~), the column 'Extent' shall be recast as under:

  S.     Nature of power                                to   whom Extent
  NO.                                                   delegated
  123-   1)To grant Ex-gratia Relief in favour of DCP             Full powers within the
  A      the employees of the POD, other persons                  Budget Provisions with the
         or their heir and to the owners of                       following scales:
         Domestic Animals, who are electrocuted
         and die, or are rendered fully/partially                 A.Human Beings: I. In case
         disabled due to the negligence of the POD,               of Death=Rs 10.00 lacs.
         subject to the conditions that:
                                                                  II.Total Disability=Rs 7.50
         I) All the employees of the POD, whether                 lacs.
         regular ,DRW/Casual labour, Work
         Charged, Contingent paid etc., engaged in                III.Partial     Disability=Rs
         the generation, transmission or supply of                2.00 lacs
         electrical energy in the Department, who
         are killed, incapacitated, wholly or                     In case of death of any
         partially, during the course of discharging              employee, the Ex-gratia
         their bonafide and legitimate duties;                    relief shall be paid to the
         ii) Civilians, killed or injured, resulting in           legal heirs of the deceased.
         their partial or total disability, subject to            The payment shall be
         the explicit condition that the accident is              subject to the condition that
         not attributable to them, but to . the lapses,           the relief, granted by the
         attributable to the POD, as verified by the              Government under the
         Director, TTl & C;                                       Workman's Compensation
                                                                  Act, shall be adjusted while
         III) Domestic animals killed by                          making payment of the Ex-
         electrocution, caused due to lapses,                     gratia relief.

attributable to the Department and verified by the Director, n-! ac. B.Domestic Animals i.

                                                                  Cow       ,bull,    horse=Rs
                                                                  20,000 ii.Sheep/Goat=Rs
                                                                  5,000.

15. The petitioner has been left without any means and succour due to the

death of her husband, who was the only earning member. She has also

been deprived of his love, affection and company. The State being a

welfare State and framed policy of ex-gratia relief to the heirs of

those, whose deaths occur due to electrocution, therefore, grant of

compensation to the petitioner in terms of the policy would be just and

OWP (C) No.1/2013 IA No.1/2013

proper to meet the ends of justice. The petitioner is, accordingly, held

entitled to compensation of Rs.10 Lakh in terms of the aforesaid

orders as minimum compensation for the death of her husband.

16. 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