Shahnaza Akhter & Anr vs State Of J&K & Others
2022 Latest Caselaw 405 j&K/2

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                                                Reserved on: 07.04.2022
                                                Pronounced on:20.04.2022


                         OWP No.768/2009


SHAHNAZA AKHTER & ANR                             ... PETITIONER(S)
                   Through: - Mr. M. Ashraf Wani, Advocate.

Vs.

STATE OF J&K & OTHERS                           ...RESPONDENT(S)

                   Through: - Mr. T. M. Shamsi, ASGI.
                              Mr. Asif Maqbool, Dy. AG.
                              Mr. Irfan Andellb, Dy. AG.


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                             JUDGMENT

1) The petitioners have filed the instant petition seeking a direction

upon the respondents for providing compensation to them for the death

caused to Fayaz Ahmad Bhat, husband of petitioner No.1 and father of

petitioner No.2 due to electrocution. A further direction commanding

respondent to complete investigation in FIR No.164/2009 registered with

P/S Parimpora, has also been sought.

2) It is averred by the petitioners that the petitioner No.1 happens to

be the widow of deceased Fayaz Ahmad Bhat whereas petitioner No.2

happens to be his daughter. It is further averred that the deceased was

working as a Gang Coolie (Class-IV) in the pay scale of Rs.2550-3200/,

drawing a monthly salary of Rs.7789/. On 23rd July, 2009, while the

deceased along with other officials were on duty at Hamdania Colony,

Bemina, in connection with measurement of canal, the deceased slipped

from the bank of the canal and touched the barbed wire installed by 44 th

BN of CRPF which was stationed at Hamdania Colony, Bemina. The

deceased received strong electric shock and died on spot. The police

registered FIR No.164/2009 for offence under Section 304-A RPC in this

regard. It is alleged that 44th BN of CRPF had taken electric supply

connection without the approval of concerned department and connected

the same with the barbed wire. Thus, according to the petitioners the

CRPF is responsible for the death of the deceased. The petitioners have

also alleged that Power Development Department is equally responsible

for the negligence and dereliction of duty which resulted in death of the

deceased and, as such, they are also liable to pay compensation to the

petitioners. It is averred that the officials of the Power Development

Department did not take care to inspect the electric supply connection as

per the mandate of law. The age of the deceased at the time of his death is

stated to be 38 years. On the basis of these allegations, the petitioners have

sought compensation from the respondents as also the investigation into

the aforesaid FIR.

3) The writ petition has been resisted by all the respondents by filing

separate replies thereto. In the reply filed by the CRPF, it has been

submitted that a high voltage transformer at about 3/3.5 feet height from

the ground level was stationed in front of the CRPF camp at Hamdania

Colony by roadside. It is averred that concertina wire was laid near the

transformer alongside the bank of the canal. It has been further averred

that high tension wire with high voltage cable which connected the

transformer resulted in melting of rubber insulation and it touched the

concertina wire. On 23.07.2009 at about 10.30 hours, the deceased, who

is an employee of the Irrigation Department, came in contact with the

concertina wire and sustained electric burn injuries. It has been further

averred that concertina wire was laid way back in early 1990's for security

reasons and this was in knowledge of officers/officials of the Electricity

Department but they never objected to it. It is contended that the

concertina wire got accidentally electrified due to the melting of

plastic/rubber insulation covering the electric wire which resulted in direct

contact of the concertina wire with the naked electric wire. The CRPF has

denied having taken any electric connection for electrifying its fence and

claimed that they had no knowledge about the fact that the electric wire

had come in contact with the concertina wire. It has also been submitted

that the CRPF camp is stationed at about 35-40 meters away from the

transformer and that there is 20-30 feet wide canal in between campus and

the transformer. It is also averred that there is no question of taking electric

connection from the high-tension wires passing through transformer for

domestic purposes. It is further averred that the electric connection which

was provided to the campus by the State Electricity Authority was from

the opposite side. On these grounds, the CRPF has denied its involvement

in the occurrence and have contended that no negligence can be imputed

to the officials/officers of the CRPF.

4) The Irrigation Department has filed a separate reply in which they

have admitted the occurrence and have also admitted that FIR

No.164/2009 for offence under Section 304-A RPC was registered by

Police Station, Parimpora, in respect of the occurrence. It has been

contended that the date of birth of the deceased was 01.04.1967 as per his

service book and he was appointed as a Coolie on 01.02.1999 getting a

gross monthly salary of Rs.10,320/ at the time of his death. It has been

contended that the CRPF personnel had not put up any caution boards near

the site. It has also been contended and under Janta Insurance scheme, the

legal heirs of the deceased have been provided the relief as permissible

under law. It is also averred that the State Government will provide

employment to one of the dependents of the deceased in terms of SRO 43

after completing the requisite formalities.

5) The Power Development Department has, in its reply, submitted

that CRPF personnel of their own and without any information to the said

Department connected the barbed fencing around their camp with the

electric network thereby making it live and vulnerable for any other

person with an intention to safeguard their camp from any kind of

intrusion. On this ground, it is contended that the Power Development

Department is not liable to pay any compensation to the legal heirs of the

deceased. It is also averred that the challan pursuant to the investigation

of FIR No.164/2009 was presented before the Court and the same has been

dismissed in terms of order dated 08.10.2016 passed by Judicial

Magistrate, 1st Class (Forest Magistrate), Srinagar.

6) Status report/affidavit has also been filed by the Police Department

in which the occurrence has been admitted and it has been submitted that

the electric transformer was installed on the road and the wires of the said

transformer were without insulators. According to the police, the incident

took place due to the negligence of Power Development Department. It is

further averred that during investigation of the case, statements of the

witnesses were recorded and officials of the Power Development

Department, namely, Ghulam Mohammad Ganie, Bashir Ahmad Gojree,

Ab. Rahim Ganie, Gh. Mohi-ud-Din Malik and Fida Hussain Bhat, were

found complicit in the occurrence and they were booked for offence under

Section 304-A RPC whereafter challan was presented before the Court.

7) I have heard learned counsel for the parties and perused the

pleadings and the material on record.

8) All the contesting respondents have raised a preliminary objection

with regard to maintainability of the writ petition on the ground that

disputed questions of fact are involved in this case and, as such, the

petitioners should avail the remedy of civil suit instead of invoking the

extraordinary writ jurisdiction of this Court. The objection raised by the

learned counsel appearing for the respondents is without any substance

for the reason that there is no dispute with regard to the fact that the

deceased has died as a result of electric shock. The only question which is

required to be determined is due to whose negligence the deceased had

died and what amount of compensation is required to be awarded in favour

of dependents of the deceased.

9) The question whether there is any limitation on the powers of the

High Court for exercise of writ jurisdiction under Article 226 of the

Constitution came up for discussion before the Supreme Court in the case

of UP State Co-operative Land Development Bank Ltd. V. Chandra

Bhan Dubey, (1999) 1 SCC 741. The Court observed as under:

"It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporation or not. Constitution in not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any

other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to by-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial 'bull in china shop' in the exercise of its jurisdiction under Article 226."

10) From the foregoing enunciation of law on the subject, it is clear that

the power conferred upon the High Court under Article 226 of the

Constitution is of wide amplitude. The High Courts that have imposed

upon themselves certain limitations in the matter of exercise of writ

jurisdiction otherwise there is no limit to the jurisdiction of the High Court

under Article 226 of the Constitution of India. One of the self-imposed

limitations on the power of the High Court under Article 226 is that it

would not go into intricate questions of fact which require leading of oral

evidence but in the instant case, as already noted, the incident, which is

subject matter of the writ petition, has been admitted by the respondents

in their replies. Therefore, the contention of the respondents that the writ

petition is not maintainable is without any merit.

11) That takes us to the question as to who was responsible for the death

of the deceased. According to the reply filed by the Power Development

Department, it was the CRPF which is responsible for the death of the

deceased. They have submitted that the CRPF, in order to protect their

campus, had connected the barbed wire with the electric connection from

the transformer and thereby electrified the barbed wire. It is further

contended that without putting any caution hoardings, the

officials/officers of the CRPF were negligent resulting in death of the

deceased. It has been contended that the CRPF personnel had, of their own

without any information to the Power Development Department,

connected the barned fencing around their camp with the electric network.

This fact has been disputed by the CRPF in their reply to the writ petition.

In their reply, the CRPF have submitted that high voltage transformer was

installed at 3/3.5 feet height from the ground level in front of CRPF camp

at Hamdania Colony by roadside and the concertina wire was laid

alongside bank of the canal. It has been further submitted that the rubber

insulators of the high voltage cable had melted and the same touched the

concertina wire thereby electrifying it, which ultimately resulted in death

of the deceased.

12) It is an admitted fact that the CRPF had not obtained electric

connection from the Power Development Department for the purposes of

electrifying the barbed wire. The stand of the CRPF that the electrification

of the barbed wire took place because of melting of rubber insulators of

the high voltage cable of the transformer, has been confirmed by the report

of the police. As per the status report of the police the electric transformer

was installed on the roadside and wires of the said transformer were lying

uninsulated. After investigation conducted by the police, the officials of

the Power Development Department were found complicit and they were

booked for offence under Section 304-A RPC. Thus, the investigation

conducted by the police vindicates the stand taken by the CRPF.

13) It is the duty of the officials/officers of the Power Development

Department to regularly check all electric connections, particularly vital

installation, high tension wires and transformers. It is their statutory duty

to ensure that no mishap takes place on account of lack of proper

maintenance of these installations. Even if it is assumed that the CRPF

personnel had, without information of the PDD, electrified the barbed

wire, the fact that the same was not detected by the officials of the Power

Development Department shows that there was no regular supervision of

the electric installations on their part which was their statutory duty.

14) The Supreme Court has, in the case of M. P. Electricity Board v.

Shall Kumar, AIR 2002 SC 551, while dealing with a similar situation,

observed as under:-

"It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous

commodities have extra duty to chalk out measures to prevent such mishaps."

15) From a perusal of the afore-quoted observations of the Supreme

Court, it is clear that even if it is assumed that the CRPF personnel had

siphoned off the energy from the aforesaid transformer, still then it was

the duty of the officials of the Power Development Department to manage,

prevent and check the pilferage by installing necessary devices, which, in

the instant case, they have failed to do. Thus, negligence of the

officials/officers of the Power Development Department is writ large in

the instant case.

16) It has been contended by learned counsel appearing on behalf of the

Power Development Department that the challan filed against the officials

of the said Department stands dismissed by the trial Magistrate and, as

such, it cannot be stated that the officials of the Power Development

Department were negligent. This argument is destined to be rejected

because acquittal or discharge of the officials of the Power Development

Department does not mean that they were not negligent. There is a

distinction between negligence which is punishable under criminal law

and the negligence which gives rise to tortious liability. In order to attract

the provisions relating to criminal negligence, it is to be shown that the

act or omission of the accused was grossly negligent but in the case of

tortious liability, even a failure to perform statutory duty would fasten a

person with civil liability. Therefore, the defence that the charge sheet

against the officials of the Power Development Department has been

dismissed is not available to them.

17) Having held that the officials of the Power Development

Department were negligent in performance of their duties which resulted

in death of the deceased, the question that would arise is as to how the

compensation due to the petitioners can be assessed. It is a settled law that

in such matters, the Court may seek guidance from the principles

governing assessment of compensation in MACT cases or fatal accidents.

Baseline is that the amount assessed must be just compensation and not

an excuse for undue enrichment. The guidelines for assessment of

compensation in MACT cases have been laid down by the Supreme Court

in National Insurance Company Ltd. v. Pranoy Sethi, (2017) 16 SCC

680.

18) On the basis of the aforesaid guidelines, let us now proceed to

assess the compensation payable to the dependents of the deceased. As

per the reply filed by the Irrigation Department, the employer of the

deceased, his date of birth was 01.04.1967, which means that at the time

of his death, he was aged 42 years. His gross monthly salary has been

shown as Rs.10,320/. As per the principles laid down in Pranoy Sethi's

case (supra), an addition of 30% to the income of the deceased is to be

made. Thus, monthly income of the deceased is to be taken as Rs.13,416/

and his annual income would come to Rs.1,60,992/. After deduction of

1/3 of his income towards personal and living expenses of the deceased,

the annual loss of dependency comes to Rs.1,07,328. Having regard to the

age of the deceased, the multiplier of 14 has to be applied. Thus, the total

loss of dependency to the petitioners, who happen to be the dependents of

the deceased, would be Rs.15,02,592/. Besides this, the petitioners would

be entitled to Rs.15000/ for loss of estate, Rs.40,000/ for loss of

consortium and Rs.15000/ on account of funeral expenses. Thus, the

petitioners are entitled to the compensation as under:-

            1.     Loss of dependency             =15,02,592/
            2.     Loss of estate                 =15,000/
            3.     Loss of consortium             =40,000/
            4.     Funeral expenses               =15,000/
                         Total                    =15,72,592/


1)      In the facts and circumstances and the reasons given

hereinbefore, the petitioners are held entitled to a compensation of

Rs.15,72,592/ along with interest @6% per annum from the date of

filing of this petition till its realization. The said amount shall be

payable to the petitioners by respondents No.1 to 4 and upon its

realization, it shall be paid to the petitioners in equal shares to the

petitioners. The relief pertaining to completion of investigation has

been rendered infructuous as during pendency of the petition charge

sheet has already been filed against the accused.

2)      The petition stands disposed of in above terms.


                                                  (SANJAY DHAR)
                                                      JUDGE

Srinagar,
20 .04.2022
"Bhat Altaf, PS"
                   Whether the order is speaking:      Yes/No
                   Whether the order is reportable:    Yes/No