Jammu & Kashmir High Court

Jamal-Ud-Din Gujjar And Another vs Unknown on 7 October, 2021

                                                               Case No.46




      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                       AT JAMMU




                                                  OWP No. 394/2010

Jamal-ud-Din Gujjar and another                                 ..... petitioner (s)

                                Through :-   Mr. B.S.Bali Advocate

                          V/s

                                                               .....Respondent(s)
State and ors
                                Through :- Mr. F.A.Natnoo AAG.

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                            JUDGEMENT(ORAL)

1 The petitioners are unfortunate parents of one Parvez Ahmad

Gujjar, aged 12 years, who got electrocuted on 9th June, 2008 when he

incidentally touched the standing green tree touching electricity transmission

line. On the allegation that 33 KV transmission line maintained by the

Department of Power Development was touching a green tree in village

Amkoot Sherbibi, which created a short circuit in which the son of the

petitioners died when he came in contact with the said tree. FIR came to be

registered in Police Station, Banihal against the officials of PDD. The police,

after investigation, proved the case under Section 304-A RPC against the

officials of PDD and presented the challan before the competent Court of law.

The accused persons-PDD officials were, however, later on acquitted by the

trial Court in the absence of evidence.

2 Having lost their son due to electrocution, the petitioners filed the

instant petition claiming, inter alia, a direction to the respondents to pay

appropriate compensation to them on account of untimely death of their son

due to electrocution. The petitioners placed reliance upon the FIR, challan as

also the medical opinion contained in the post mortem report.

3 The respondents have filed their objections in which they have

denied that the accident has taken place due to their negligence. It is submitted

by the respondents that the death of son of the petitioners occurred due to

Cardio Respiratory Arrest besides electric shock and, therefore, the cause of

death cannot be attributed to the negligence of the respondents. It is suggested

by the respondents that in case this Court finds the petitioners entitled to any

compensation, the same is liable to be paid strictly as per the Government

Order No. 328-PDD/2011 dated 24.11.2011 and the petitioners are not entitled

to compensation more than Rs.3.00 lac.

4 Having heard learned counsel for the parties and perused the

record, I am of the view that registration of FIR against the PDD officials,

presentation of challan by the police after having proved the case against them

and the medical opinion on record clearly demonstrate that the cause of death

of son of the petitioners was due to the negligent act of the officials of PDD

who had failed to take due care and caution in maintaining the electric line in

question. The maintenance of electric lines would include cutting and pruning

of trees, for, there is likelihood of such trees and their branches coming into

contact with live wires during rainy season or otherwise. The danger of these

green trees touching the live wires and creating short circuit cannot be ruled

out. The son of the petitioners, who was a nomad roaming in the forest along

with his livestock, unfortunately came in contact with such tree. Apart from

being vicariously liable for the negligent acts of its employees, who are

maintaining and distributing the electricity through transmission lines are

essentially dealing with a dangerous activity which, having regard to its nature,

is hazardous, are liable to compensate the petitioners on the principle of strict

liability. In that view of the matter, it is the duty of the respondents to take all

care and caution to prevent any mishap.

5 Similar question came up for consideration before the Division

Bench of this Court in the case of Abdul Aziz Bhat and ors vs State of

Jammu and Kashmir, 2013 (III) SLJ 786. The Division Bench of this Court,

after discussing the case law on the point in paragraph 2.2, concluded thus:

"2.2 A Constitution Bench of Hon'ble the Supreme Court in the case of M. C. Mehta (supra), after referring to the aft-quoted principles laid down by House of Lords in Rylands v. Fletcher, (1868) LR 3 HL 330, has proceeded to hold that the Court must move with the march of time and evolve principles befitting the cause of justice and that law has to grow in order to satisfy the needs of the fast changing society. It cannot afford to remain static. Keeping in view the aforesaid backdrop their Lordships opined as under:-

" .................We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable

for causing such harm as a part of the social cost of carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arsing on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads.

........................ This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher. (Emphasis added)"

A perusal of the aforesaid para in unmistakable terms shows that a hazardous or an inherently dangerous activity can be tolerated only on the condition that such an enterprise would indemnify all those who suffer on account of carrying on of such dangerous activity, regardless of whether it is carried on with reasonable and due care. Therefore, even in a case where due care and caution had been taken but on account of hazardous or inherently dangerous activities death or injuries have resulted, then indemnification is imperative. These principles have found full support from the view expressed by another Constitution Bench in Charan Lal Sahus case (supra). Again in the case of M. P. Electricity Board v. Shail Kumari and ors (2002) 2 SCC 162 these principles have been followed and applied as is evident from perusal of para 8 and 11 of the judgment which are quoted below in extenso:-

"8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis

of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.

11. The rule of strict liability has been approved and followed in many subsequent decision in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc. {1994(1) All England Law Reports (HL) 53}. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in Charan Lal Sahu v. Union of India and a Division Bench in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai had followed with approval the principle in Rylands v. Fletcher. By referring to the above two decisions a two Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum v. New India Assurance Co. Ltd. {2001 (2) SCC 9}. (Emphasis added)"

6 Following the dictum of law laid down in the aforesaid judgment

of the Division Bench, I have no doubt in mind that the petitioners have made

out a case for indulgence and for issuance of direction to the respondents to pay

adequate compensation for the loss of their young son.

7 Having regard to the policy of payment of ex-gratia relief to the

Departmental or non-Departmental persons killed or grievously incapacitated

due to electric related incidents promulgated vide Order No. 328-PDD/2011

dated 24.11.2011, the petitioners would be entitled to payment of lump-sum

compensation of Rs.3.00 lac. Even if this Court adopts the guidelines given in

the aforesaid Government Order, the petitioners would become entitled to

payment of Rs.3.00 lac as compensation w.e.f the date of accident i.e

09.06.2008 and, therefore, the said amount would also become payable along