Jammu & Kashmir High Court
Renu Bala & Ors vs State & Ors on 27 April, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No. 1187/2014
Reserved on :12.04.2023
Pronounced on : 27.04.2023
Renu Bala & ors. .... Petitioner/Appellant(s)
Through:- Mr. Sachin Dogra, Advocate
V/s
State & ors. .....Respondent(s)
Through:- Mr. Amit Gupta, AAG
CORAM : HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
GIST
01. The present writ petition has been filed by the petitioners seeking
an appropriate writ of mandamus directing the respondents to pay the
compensation to the petitioners for the death of Jatinder Kumar S/o Sh.
Kuldeep Raj (husband of petitioner No. 1, father of petitioner No. 2 and son
of petitioner No. 3) due to rash and negligent act on the part of the
respondents being employee of the Power Development Department
working under the employment of respondent Nos. 1 to 5 at the time of
death of the deceased.
BRIEF FACTS OF THE CASE
02. The deceased-Jatinder Kumar had been engaged by respondent
Nos. 1 to 5 as casual labourer for the last more than seven years, who had
been rendering his service to the entire satisfaction of his superiors and
unfortunately on 23.09.2013, the deceased alongwith one Khaliq Khan was
directed by respondent Nos. 6 and 7 to affect the repair in a Transformer
installed near Sughat Complex Janipur, Jammu.
03. The specific case of the petitioner is that as the deceased and
Khaliq Khan, at one point of time, had disconnected illegal connection
which was running under the verbal direction of respondent Nos. 6 and 7, as
such, they had developed grudge and ill will against the deceased and said
Khaliq Khan. The respondent No. 6 and 7 were apprehending some
departmental inquiry against them for the act of willful commission and
omission regarding the misuse of electricity under the instructions of
respondent Nos. 6 and 7, as such, the said respondents were always in the
search of occasion to see that the service of the deceased as also Khaliq
Khan were disbanded and terminated.
04. Further specific case of the petitioners is that it was in the
knowledge of respondent Nos.6 and 7 that the supply of the line had not
been disconnected and disrupted, as such, they intentionally and deliberately
compelled the deceased-Jatinder Kumar to climb on the Transformer and
affect the required repairs, though the immediate repairs were not required
nevertheless the deceased was compelled to affect the repair. The deceased
before climbing on the transformer had asked respondents Nos.6 and 7 about
the disconnection of power supply to the transformer situated near Sughat
Complex, Janipur, Jammu. It was unanimously stated by respondent Nos.6
& 7 that the power supply had been disconnected and thereafter, the
deceased-Jatinder Kumar was made to climb the transformer and made the
repair and the moment, the said Jatinder Kumar started the repair, he got the
electric shock and died on the spot and due to the untimely death of Jatinder
Kumar, whole of the family had been dragged and brought to starvation.
SUBMISSIONS OF THE PETITIONERS
05. Learned counsel appearing on behalf of the petitioners submits
that petitioner No. 1 is unfortunate widow whereas petitioner No. 2 is minor
daughter and petitioner No. 3 is the mother of the deceased, who were left
with no source of income and the said Jatinder Kumar had been earning an
amount of Rs.10,000/- not only by working as casual labourer but also
rendering his service as an expert electrician in the society but due to the
untimely death of said Jatinder Kurnar, the petitioners have been deprived
their source of livelihood as also love and affection.
06. Learned counsel further submits that had the deceased not died,
the deceased would have been in the department upto the age of 58 years and
would have earned an amount of Rs. 25 lacs, out of which, the deceased
would have spent more than Rs. 15 lacs on the welfare and betterment of his
family members and the deceased at the time of death was aged about 28
years, as such, would have rendered his service in the department for another
30 years.
07. Learned counsel for the petitioners vehemently argued that the
rash and negligent act on the part of respondents Nos. 6 and 7 is established
from the fact that an FIR in respect of the occurrence has been registered in
the Police Station, Janipur and the Police Station, Janipur after thorough
investigation, prepared the charge-sheet against the said respondents under
Section 304/34 RPC and had been presented in the Court of law. He further
argued that from the perusal of the police final report, it appears that said the
respondents have been booked under Sections 304/34 RPC for their
commission and omission of offences and the cause of death of the
deceased-Jatinder Kumar had also been medically established through the
postmortem report.
08. Lastly, learned counsel appearing on behalf of the petitioners
argued that the deceased died in harness while discharging his duties in the
capacity of lineman employed as casual labourer since 2005 and the
petitioners immediately after the death of deceased-Jatinder Kumar
approached the department and requested them for compensation on the
death of deceased-Jatinder Kumar but the officials of the department did
not pay any heed to their request and till date, compensation has not been
paid to the petitioners. He further argued that the officials of the department
were under legal obligation to pay the compensation to the petitioners on the
death of the deceased-Jatinder Kumar, who died in harness but till date,
nothing has been done by them and the petitioners are running from front
pillar to post for the compensation on account of the death of deceased-
Jatinder Kumar.
SUBMISSIONS OF THE RESPONDENTS
09. Mr. Amit Gupta, learned AAG appearing on behalf of the
respondents submits that the respondents have not committed any act which
would warrant payment of compensation and the petitioners by no stretch of
imagination can claim compensation as a matter of right. Besides, learned
AAG appearing on behalf of the respondents submits that the J&K
Government has come up with the policy in such like cases of Electrocution,
where the government grants ex-gratia amount to the tune of Rs. 3.00 lacs in
the case of death of likewise structure has been prepared and crystallized in
cases of grievous injuries and disability. The petitioners have not submitted
any document to access their case for compensation permissible under rules.
Learned AAG further submits that the respondents have considered the case
of the petitioners and detailed report has been submitted by Chief Electrical
Inspector, J&K PDD to Secretary, Technical, J&K PDD vide
communication No. CEI/JKPDD/1195-99 dated 03.11.2021.
10. Mr. Amit Gupta, learned AAG has argued that as per the report of
the Assistant Executive Engineer, Sub Division-II Janipur vide
communication No. SD-II/J/496-99 dated 28.09-2013, a fatal accident
happened on 28.09.2013 at about 10.30 AM where one need based worker-
Jatinder Kumar died on spot while carrying out power restoration work on
BSNL transformer and on 28.09.2013 at 8.10 AM, Sh. O. P. Mangotra
Foreman and Sh. Sanjeev Khajuria, Technician took the shutdown of J2 &
J9 Feeder deployed Sh. Jatinder Kumar, need based worker (deceased) and
Sh. Khaliq Khan, Lineman to carry out power restoration work to BSNL
exchange during the course while working on BSNL transformer, a flash
over occurred and Jatinder Kumar fell down from the electric pole and died
on spot.
11. Learned counsel further argued that Sh. Sanjeev Khajuria, who
was also reportedly present at the accident site and witnessing the tragic
accident and seen the body of the deceased laying on the ground with pool of
blood immediately rushed to Sub Division office to inform his officer
regarding the accident, the concerned Junior Engineer after receiving the
information about the accident at about 10.30 am reached 33/11KV
R/Station Janipur and confirmed that both the feeders i.e. J2 & J9 were shut
down as he saw the shutdown plates for the said feeders hanging there. The
power to the said BSNL transformer/exchange is being fed from J9 feeder
emanating from the said Receiving Station, Janipur. He further submits that
answering respondents are denying any negligence or any liability of
electrocution of the deceased in the present case, as such, the present writ
petition is required to be dismissed.
12. Lastly, Mr. Amit Gupta, learned AAG appearing on behalf of the
respondents argued that the deceased Sh Jatinder Kumar was engaged as
need based worker from time to time as and when required and the case of
ex-gratia compensation relief has been submitted to Secretary Technical,
J&K PDD vide communication No. CEI/JKPDD/1195-99 dated 03.11.2021
by Chief Electrical Inspector, J&K PDD and registration of FIR/Challan
ifso-facto does not make the respondents liable and the petitioners have to
prove that the accident occurred due to the fault of the respondents and the
respondents are negligent.
13. The learned counsel for the respondents has placed reliance on a
judgment rendered by Ho‟ble Apex Court in a case titled Chairman, Grid
Corporation of Orissa Ltd. (GRIDCO) & Ors. V/s Sukamani Das &
Anr. 1999 AIR (SC) 3412. The said judgment, however, is not applicable in
the present case as the distinguishable factor in that case is that there was no
negligence and the incident was on account of the act of god, but in the
present case, it is clear cut case of negligence on part of the respondents.
LEGAL ANALYSIS
14. With a view to appreciate the controversy in question, it would be apt
to refer the detail report submitted by the Chief Electrical Inspector J&J
PDD dated 03.11.2021 which has been placed on record as Annexure-R1
with the objections. From bare perusal of the report, it is apt to reproduce the
remarks submitted by the Executive Engineer Electrical Inspection Division
Jammu with regard to cause of the electric accident in question:-
(i) On the perusal of records and on spot observations made by the joint Inspection
team, it is evident that in the Instant case electrical accident occurred when a
need-based worker (deceased) carried out the repair work on the electric system
which was seemingly not electrically isolated. While carrying out the said work,
the essential Work Place carrying precautions like local earthings and other
SOPS may also seem to have not been followed by the Operation and
Maintenance (O&M) staff which are necessary even if the system Is isolated from
the sending end (L.e. the Receiving Station from where the feeders emanate), to
ensure safety of the personnel from any electric hazard resulting due to leakage
at any point/crossings/ low clearance area enroute the HT line. Further, the
inherent system limitations like low clearance crossings without
guardnetting/earthing as pointed out by the inspection team require due attention
by the department.
(ii) Further it has been observed that old/existing HT/LT lines do not have sufficient
earthling as mandated under regulation 72 of Central Electricity Authority
(Measures relating to Safety & Electric Supply) Regulations, 2010 which should
be taken up Immediately by the department to ensure safety of both the
individuals and the equipment. Permit to work before taking any work In hand
should be followed in letter and spirit. Further, in case of electrical networks
having mesh of lines and multiple/ different feeders feeding nearby DTS, the line
staff needs to exhibit extra care while carrying out O&M works.
(iii) In order to reduce such type of accidents in the near future, the concerned
territorial sub-divisional officer not only conduct electrical safety programme for
the subordinate staff from time to time but advised: them regularly to examine the
site conditions related to LT/HT network before Initiating any kind of
restoration/repairs work. This accident could have been averted, if the safety
norms are followed like adequate isolation of LT/HT network. All these Issues
need to be addressed on priority so as to ensure safety of life.
However, in general, the technical/field staff should be advised regularly
for safe and proper handling of repairs/replacement work after thorough
examining of the site conditions.
As such, the report/case is submitted for appropriate action under rules.
Xxxxxxx
15. I have gone through the report submitted by the Chief Electrical
Inspector and have also perused the documents with particular reference to
the report of the Executive Engineer and perusal whereof makes it clear that
the instant accident is purely an electrical accident and the respondents have
admitted their fault in the aforesaid report wherein the respondents have
admitted that the accident is attributed to :-
1. Non-adherence to proper "PERMIT TO WORK" system and SOPs like local
earthings, Hand \ insulating gloves, proper isolation and other safety
measures by the maintenance staff before starting of the restoration work.
2. Inadequate isolation of HT/LT Network before the start of repairs works
3. Lack of adequate knowledge for adherence to safety norms by the victim
16. From the perusal of the aforesaid report, it can safely be concluded
that the accident occurred when the deceased was carrying out the repair
work on the electric system which was not electrically isolated. It was
incumbent on the part of the respondents that before allowing the deceased
to carry out the said work, the essential work place caring precaution like
local or earthings and other SOPs were required to be followed by the
operation and maintenance staff to ensure the safety of the personal from any
electric hazard due to leakage at any point/crossing/low clearance area
enroute the HT line.
THE JAMMU AND KASHMIR ELECTRICITY ACT
2010/ELECTRICITY RULES, 1978
17. On the date of death of the said Jatinder Kumar, Jammu and
Kashmir Electricity Act 2010/Electricity Rules, 1978 were applicable, as
such, the respondents had to take precautions, preventive measures as per the
provisions of said Act and Rules, back then.
18. As per the Act, Section 2 (16) defines Electric Line to mean any
line which is used for carrying electricity for any purpose and includes any
support for any such line, that is to say, any structure, tower, pole or other
thing in, or by or from which any such line is, or maybe, supported, carried
or suspended; and any apparatus connected to any such line for the purpose
of carrying electricity. Further, Section 2 (54) defines Service Line to mean
any electric supply line through which electricity is or is intended to be,
supplied to a single consumer either from a distributing main or immediately
from the distribution licensee‟s premises and from a distributing main to a
group of consumers on the same premises or on contiguous premises
supplied from the same point of the distributing main. For the kind perusal
of this Court Section 2 (16) and Section 2 (54) are reproduced hereunder:-
2(16) "Electric Line" means any line which is used for carrying electricity
for any purpose and includes:-
a. Any support for any such line, that is to say, any structure, tower, pole or
other thing in, on, by or from which any such line is, or may be,
supported, carried or suspended; and
b. Any apparatus connected to any such line for the purpose of carrying
electricity;
2(54) "Service Line" means any electric supply line through which
electricity is, or is intended to be, supplied,
a. To a single consumer either from a distributing main or immediately from
the distribution licensee's premises; or
b. From a distributing main to a group of consumers on the same premises
or on contiguous premises supplied from the same point of the
distributing main;
Further, Rule 77 of Electricity rules, 1978 provide for clearance above
ground of the lowest conductor including service lines. For the kind
perusal of this Court, Rule 77 of Electricity Rules, 1978 is reproduced
hereunder:
"Clearance above ground of the lowest Conductor.
(I) No conductor of an overhead line, including service lines,
erected across a street shall at any part thereof be at a
height less than:-
(a) For low and medium voltage lines 5.791 Mts (19 Feet)
(b) For high voltage lines 6.069 Mts. (20 Feet)
(2) No conductor of an overhead line, including service lines, erected
along any street shall at any part thereof be at a height less than:-
(a) For low and medium voltage line 5.486 Mts. (18 Feet)
(b) For high Voltage Lines 5.791 Mts. (19 Feet)
(3) No conductor of an overhead line including service lines erected
elsewhere than along or across any street shall be at a height less
than:-
(a) For low, medium and high voltage lines up to and including 11,000
volts, if bare4.572 Mts. (15 Feet)
(b) For low, medium and high voltage lines up to an including 11,000
volts, if insulated 3.963 Mts. (13 Feet
(c) For high voltage lines above 11,000 volts 5.182 Mts. (17 Feet)
(4) For extra-high voltage lines the clearance above ground shall not
be less than 5.182 Mtrs. (17 Feet); plus 0.305 Mtrs. (1 Feet) for
every 33,000 volts or part thereof by which the voltage of the line
exceeds 33,000 volts. Provided that the minimum clearance along
or across any street shall not be less than (20 feet) 6.965 Meters.
19. From the conjoint reading of the aforesaid provisions, the
maximum clearance above ground of the conductor or service line has to be
20 ft. and minimum clearance above ground has to be 13 ft., in all cases.
20. The measure as laid down under the Regulation-72 of the
Electricity Authority Regulation 2010 were required to be followed but the
respondents have given a go-bye to the aforesaid mandatory provisions of
law which resulted in death of Jatindra Kumar.
RES IPSA LOQUITUR
21. Res ipsa loquitur is a doctrine in a latin phrase that means a „thing
speaks for itself‟. It is a doctrine under which a court can infer negligence
from the very nature of an accident or injury. The maxim Res ipsa loquitur is
resorted to when the thing is shown to be under the management of the
respondents or his servants and the accident is such as in the ordinary course
of things does not happen if those who have the management use proper
care, it affords reasonable evidence, in the absence of explanation by the
respondents, that the accident arose from want of care. The maxim does not
embody any rule of substantive law nor a rule of evidence it is perhaps not a
rule of any kind but simply the caption to an argument on the evidence. If
the result, in the circumstances in which the petitioners prove it, makes it
more probable than not that it was caused by the negligence of the
respondents, the doctrine of res ipsa loquitur is set to apply. In this context
reference maybe made to the judgment of Hon‟ble Supreme Court in the
case of Shyam Sunder & Ors. V/s State of Rajasthan, OWP No.
902/2010 reported as (1974) 1 SCC 690, where the concept of res ipsa
loquitur was explained. Relevant portion of the said judgment reads as
follows:
"10. The Maxim is stated in its classic form by Erle, C.J
"...... where the thing is shown to be under the management of the
defendant or his servants, and the accident is such as in the ordinary
course of things does not happen if those who have the management use
proper case, it affords reasonable evidence, in the absence of explanation
by the defendants, that the accident arose from want of care. The maxim
does not embody any rule of substantive law nor a rule of evidence. It is
perhaps not a rule of any kind but simply the caption to an argument on
the evidence. Lord Shaw remarked that if the phrase had not been in Latin,
nobody would have called it a principle. The maxim is only a convenient
label to apply to a set of circumstances in which the plaintiff proves a case
so as to call for a rebuttal from the defendant, without having to allege
and prove any specific act or omission on the part of the defendant. The
principal function of the maxim is to prevent injustice which would result
if a plaintiff were invariably compelled to prove the precise cause of the
accident and the defendant responsible for it even when the facts bearing
on these defendant. But though the parties relative access to evidence is an
influential factor, it is not controlling. Thus, the fact that the defendant is
as much at a loss to explain the accident or himself died in it does not
preclude an adverse inference against him, if the odds otherwise point to
his negligence (see John G. fleming, the Law of Torts, 4th Ed., p. 264) The
mere happening of the accident may be more consistent with the
negligence on the part of the defendant than with other cause. The maxim
is based as common sense and its purpose is to do justice when the facts
bearing on causation and on the care exercised by defendant are at the
outset unknown to the plaintiff and are or ought to be within the
knowledge of the defendant
11. The plaintiff merely proves a result, not any particular act or
omission producing the result. If the result, in the circumstances in which
he proves it, makes it more probable than not that it was caused by the
negligence of the defendants, the doctrine of res ipsa loquitur is said t
apply, and the plaintiff will be entitled to succeed unless the defendant by
evidence rebuts that probability.
RIGHT OF THE WRIT COURT TO AWARD COMPENSATION
22. The Hon‟ble Supreme Court of India in a case titled "Nila Bath
Behera alias Lalita Behera V/s State of Orissa, (1993) 2 SCC 746" was
dealing with the issues of award of compensation in proceedings under
Article 32 and Article 226 of the Constitution. The Hon‟ble Apex Court
noted that remedy is available in public law based on strict liability for
contravention of fundamental rights. The Court further held that this right is
distinct from and in addition to the remedy in private law for damages
resulting from contravention of the fundamental rights. The Court also held
that the Supreme Court and High Courts have vide powers under Article 32
and Article 226 respectively to forge new tools that may be necessary for
doing complete justice and enforcing the fundamental rights guaranteed in
the Constitution. The relevant portion of the judgment reads as follows:-
"21. We respectfully concur with the view that the court is not helpless
and the wide powers given to this court by Article 32, which itself is a
fundamental right, imposes a Constitutional obligation on this Court to
forge such new tools, which may be necessary for doing complete justice
and enforcing the fundamental rights guaranteed in the Constitution which
enable the award of monetary compensation in appropriate cases, where
that is the only mode of redress available. The Power available to this
Court under Article 142 is also an enabling provision in this behalf. The
contrary view would not merely render the court powerless and the
Constitutional guarantee a mirage, but may, in certain situations, be an
incentive to extinguish life, if for the extreme contravention the Court is
powerless to grant any relief against the State, except by punishment of the
wrongdoer for the resulting offence, and recovery of damages under
private law, by the ordinary process. If the guarantee that deprivation of
life and personal liberty cannot be made except in accordance with law, is
to be real, the enforcement of the right in case of every contravention must
also be possible in the constitutional scheme, the mode of redress being
that which is appropriate in the facts of each case. This OWP No.
902/2010 Page 10 of 21 remedy in public law has to be more readily
available when invoked by the have-nots, who are not possessed of the
wherewithal for enforcement of their rights in private law, even though its
exercise is to be tempered by judicial restraint to avoid circumvention of
private law remedies, where more appropriate."
"21. We may also refer to Article 9(5) of the International
Convenant on Civil and Political Rights, 1966 which indicates that an
enforceable right to compensation is not alien to the concept of
enforcement of a guaranteed right. Article 9(5) read as under: "Anyone
who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation."
"22. The above discussion indicates the principles on which the
Court's power under Article 32 and 226 of the Constitution is exercised to
award monetary compensation for contravention of a fundamental right.
This was indicated to earlier, which may tend to minimise the effect of the
principle indicated therein, do not really detract from the principle. This is
how the decisions of this Court in Rudul Shah and others in that line have
to be understood and Kasturilal distinguished therefrom. We have
considered this question at some length in view of the doubt raised, at
time, about the propriety of awarding compensation in such proceedings,
instead of directing the claimant to resort to the ordinary process of
recovery of damages by recourse to an action in tort. In the present case,
on the finding reached, it is clear case of award of compensation to the
petitioner for the custodial death of her son."
23. In the given facts, I also look at another judgment of the Supreme
Court in the case of Madhya Pradesh Electricity Board V/s Shail Kumari
& Anr, AIR 2002 SCC 55, that was a case where the deceased was riding
on a bicycle in the night while returning from his factory. There had been
rain and the road was partially inundated in water. The cyclist did not notice
the live wire on the road and hence he rode the vehicle over the wire, it
twitched and snatched him and he was instantaneously electrocuted. The
main defence raised by the Respondent was that the wire in question had
been used by somebody to siphon energy for his own use and said act was
done clandestinely behind the back of the electricity board. The line got
unfastened from the hook and it fell on the road over which the cycle driven
by the deceased slid, resulting in the instantaneous electrocution. In those
facts, the Supreme Court held as follows:-
"7. It is an admitted fact that the responsibility to supply energy in the
particular locality was statutorily conferred on the Board. If the energy so
transmitted cause 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."
"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 in 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 case 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 without 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."
"9. The doctrine of strict liability has its origin in English Common
Law when it was propounded in the celebrated case of Ryland's v/s
Fletcher (1868 Law OWP No. 902/2010 Page 12 of 21 Reports (3) HL
330). Blackburn J., the author of the said rule had observed thus in the
said decision."
Xxxxx
"13. In the present case, the Board made an endeavour to rely on the
exception to the rule of strict liability (Ryland's v. fletcher) being "an act
of stranger." The said exception is not available to the Board as the act
attributed to the third respondent should reasonably have been anticipated
or at any rate its consequences should have been prevented by the
appellant-Board. In North western Utilities, Limited V. London Guarantee
and Accident Company, Limited (1936 Appeal cases 108), the privy
Council repelled the contention of the defendant based on the aforesaid
exception. In that case a hotel belonging to the plaintiffs was destroyed in
a fire caused by the escape and ignition of natural gas. The gas had
percolated into the hotel basement from a fractured welded joint in an
intermediate pressure main situated below the street level and belonging
to the defendants which was a public utility company. The Privy council
held that the risk involved in the operation undertaken by the defendant
was so great that a high degree care was expected of him since the
defendant ought to have appreciated the possibility of such a leakage."
"14. The privy Council has observed in Quebec Railway, Light Heat
and Power Company Limited V/s Vandry & Ors. (1920 Law Reports
Appeal Cases 662) that the company supplying electricity is liable for the
damage without proof that they had been negligent. Even the defence that
the cables were disrupted on account of a violent wind and high tension
current found its way through the low tension cable into the premises of
the respondent was held to be not a justifiable defence. Thus, merely
because the illegal act could be attributed to a stranger is not enough to
absolve the liability of the Board regarding the live wire lying on the
road."
24. What follows from the aforementioned judgments is that the
Supreme Court has in identical matters taken a view that this Court has
powers in an appropriate case to award compensation and has also taken a
view that the company/corporation/departments supplying electricity are
liable for damages without proof that they have been negligent based on the
principle of absolute liability.
25. Registration of FIR and after thorough investigations, challan
against respondent Nos. 6 and 7 under section 304/34 RPC was produced
which clearly established about the negligent act on the part of the
respondent Nos. 6 and 7. It is evidently clear that cause of death of Jatinder
Kumar was due to electrocution/negligent, which is completely attributable
to the respondents, who have failed to take due care and caution in
maintaining electric supply lines under the Electricity Act and Rules framed
thereunder and as per report of the Executive Chief Electrical Inspector
PDD, it can safely be concluded that the accident had occurred due to fault
attributable to the respondents and thus, there is no disputed question of fact
as alleged by the respondents to adjudicate the present writ petition.
26. It goes without saying that anyone generating, transmitting,
supplying or using electric energy of high voltage, which is hazardous and
inherently dangerous activity is required to ensure that no such energy was
transmitted or discharged unless requisite measures had been taken to
prevent its uncontrolled escape, which may injure, impair or takeaway life.
Any omission in preventing the discharge of high voltage electric energy by
anyone engaged in the activity of supplying such electric energy is liable to
compensate for the damage caused to a human life because of such energy.
27. Under the Jammu and Kashmir Electricity Act read with Jammu
and Kashmir Electricity Rules, the state is licensed to deal with electric
energy. While doing so it is required to take requisite preventive measures as
enshrined in Rule 77 and other provisions so that the electric energy does not
cause any damage to life and property. The negligence of the Respondents in
maintaining electric/service wires is writ large on the face of the record.
28. The Division Bench of this Court in the case of Abdul Aziz Bhat
v. State of Jammu and Kashmir, 2013 (III) SLJ 786, 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 (Reported as 1987 AIR page 1086), after referring to
the aft-quoted principles laid down by House of Lords in Rylands v.
Fletcher, [L.R.] 3 H.L. 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 arising 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.
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
Sahu‟s case (supra). Again in the case of M.P. Electricity Board v. Shail
Kumari (2002) 2 SCC 162 that can be fruitfully referred. This was case
where a cyclist was fatally electrocuted on account of his cycle touching a
live wire lying on road partially inundated with water. The Apex Court
laid down the law which is reproduced as follows:
"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."
29. This Court in case titled State of JK &Ors. vs. Altaf Ahmad
Ganai & Anr. SLJ 2003 (1) has held as under:-
"14. .......Thus, 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. As
indicated above, the basis of such liability is the foreseeable risk inherent
in the very nature of such activity. Thus, in such cases, the negligence
comprehends that the foreseeable risk would be avoided by taking
reasonable precautions."
30. From the above, it is crystal clear that the rule of strict liability has
been approved and followed in many subsequent decisions in England. This
principle has also gained approval in India. A Constitution Bench of the
Supreme Court of India in the case reported as Charan Lal Sahu Vs. Union
of India. 1990 (1) SCC 613 and a two Judge Bench in the case of
Kaushunma Begum Vs. New India Assurance Co. Ltd. 2001 (2) SCC 9
adopted this principle. As a matter of fact, in an earlier decision reported as
M. C. Mehta Vs. Union of India, 1987 (1) SCC 395, the Supreme Court of
India has gone even beyond the rule of strict liability and has held that where
an enterprise is engaged in a hazardous or inherently dangerous activity and
harm anyone 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.
31. The rule of absolute liability does not require that claimants are
under obligation to prove negligence. On account of hazardous and
dangerous nature of enterprise, the liability is fastened on the defaulter even
when due and necessary care has been taken. The accident is admitted and it
has not been disputed that death of Jatinder Kumar has not occurred on
account of electrocution. The claimants would become entitled to demand
compensation in such like cases on account of violation of fundamental
rights to life and liberty guaranteed under Article 21 of the Constitution.
32. The respondents, in the instant case, have also not provided any
material that may lend support to the plea taken by them in their defence that
the negligence was of the deceased and not the respondents.
33. In view of the above quoted legal position, I hold the respondents
liable to compensate the petitioners for the death of Jatinder Kumar, who has
been electrocuted due to the negligence on part of the respondents.
34. The next question which falls for determination is regarding the
quantum of compensation to which the petitioners may be entitled to, for the
death of the said Jatinder Kumar.
35. The Finance Department of the erstwhile State of J&K (now UT)
has framed a policy in this regard by carrying an amendment in the J&K
Book of Financial Powers in pursuant to the SAC Decision No. 271/22/2019
dated 22.10.2019 by virtue of Government Order No. 454-F of 2019 dated
24-10-2019 whereby, sanction was accorded to the following amendments in
the J&K Book of Financial Powers in Chapter 5.9 against serial No. 123-
A(1), the relevant column "Extent" shall be recast as under:-
S.No. Nature of Power To whom Extent
delegated
123- 1) To grant Ex-gratia Relief in DCP Full powers within the
favour of the employees of the PDD, Budget Provisions
A other persons or their heir and to with the following
the owners of Domestic animals, scales:
who are electrocuted and die, or are
rendered fully/partially disabled due
A. Human Beings:
to the negligence of the PDD
subject to the conditions that
(i) All the employees of the PDD, I. In case of
whether regular, DRW/Casual Death=Rs.10.00
labour, Work Charged, lacs.
Contingent paid etc., engaged
in the generation, II. Total
transmission or supply of Disability=Rs.7.50
electrical energy in the lacs.
Department, who are killed,
incapacitated, wholly or III. Partial
partially, during the course of Disability=Rs.2.00
discharging their bonafide and
lacs.
legitimate duties;
(ii) Civilians, killed or injured,
In case of death
resulting in their partial or
of any employee,
total disability, subject to
the Ex-gratia relief
the explicit condition that
shall be paid to
the accident is not
the legal heirs of
attributable to the POD, as
the deceased.
verified by the Director,
The payment shall
TTI&C;
be subject to the
(iii) Domestic animals killed by
condition that the
electrocution, caused due
relief, granted by
to lapses, attributable to the
the Government
Department and verified by
under the
the Director, TTI&C. Workman's
Compensation
Act, shall be
adjusted while
making payment
of the Ex-gratia
relief.
36. Since the Government has already framed a policy vis-à-vis the
death caused due to electrocution by virtue of the aforesaid Government
Order, this Court need not to go into the parameters prescribed for awarding
of compensation in case of death/injuries arising out of the motor vehicles
accidents under the Motor Vehicles Act. The case of the death of the
petitioner No. 1‟s husband is fully covered by the aforesaid policy as the
accident is not attributable to the deceased but to the lapses attributable to
PDD as per the pleadings and record discussed herein above.
37. In the present case, petitioner No. 1 is the unfortunate widow of
the deceased whereas petitioner No. 2 is a minor daughter (at the time of
filing of the petition) and petitioner No. 3 is the mother of the deceased, who
left with no source of income and family has been put to starvation due to
death of sole earning member of the family as the deceased was earning
Rs.10,000/- by working as casual labour in the respondents-Department and
due to untimely death of husband of petitioner No. 1, the petitioners have
deprived of their source of livelihood and also love and affection of the
deceased. Had the deceased not met with an accident, he would have served
the department up to the age of 58 years and at least would have earned, as
per the stand of the petitioners, an amount of Rs. 25 lakh, out of which the
deceased would have spent more than Rs. 15 lakh on the welfare and
betterment of his family members. The deceased at the time of his death was
28 years of age and would have rendered his services in the department for
another 30 years but due to rash and negligent act on the part of the
respondent Nos. 6 and 7 which has been established from the fact that the
charge-sheet has been produced against respondent Nos. 6 and 7 under
section 304/34 RPC before the competent Court for their commission and
omission of offences. Besides, the cause of death of the deceased has been
medically established through the postmortem report which has been placed
on record along with the instant writ petition.
CONCLUSION
38. In view of the aforesaid peculiar facts and circumstances of the
case and admitted position by the respondents in the report submitted by the
Chief Electrical Inspector J&K PDD admitting the negligence and fault on
the part of the respondents, I hold the instant petition maintenance for
awarding compensation and State was under duty/obligation to see that the
SOPs like local earthings, hand insulating gloves, proper isolation and other
safety measures by the maintenance staff were taken before starting the
restoration work and in the instant case, the accident is attributed to the
respondents for non-adherence to proper "PERMIT TO WORK" system and
SOPs.
39. The case of the petitioners for compensation needs to be
considered for assessment of compensation on the basis of the policy
promulgated vide Government Order No. 454-F of 2019 dated 24.10.2019 to
grant the ex-gratia relief in favour of the employees of the PDD including
the deceased, who falls in the category of the employees of PDD being
casual labour.
40. In these circumstances and keeping in view the fact that the
deceased has left behind his mother, wife and daughter, an amount of Rs.10
lakh in total would be in my view appropriate, just and fair compensation for
the petitioners for deprivation of the life of their beloved and for the damage
which has been caused due to the quality of their life inconformity with the
Policy of payment and ex-gratia relief which covers the civilian and
departmental employees of the PDD, who have died or injured due to
electricity related incident from promulgated vide Government Order No.
454-F of 2019 dated 24.10.2019.
41. The writ petition is, therefore, allowed and the respondents are
directed to pay the petitioners an amount of Rs.10 lac within a period of two
months starting from the date of passing of this order. Out of total
compensation, petitioner No. 1, being widow of the deceased, is entitled to
an amount of Rs. 03 lac, whereas petitioner No. 3, being oldaged mother of
the deceased, is entitled to an amount of Rs. 2 lac and petitioner No. 2, being
daughter, is entitled to Rs. 5 lac and out of Rs. 5 lac, an amount of Rs. 3 lac
shall be kept in a fixed deposit for a period, she attains the age of majority
and rest of the amount i.e., Rs. 2 lac shall be released in favour of petitioner
No.2, for her studies and other basic amenities, through petitioner No. 1 i.e.,
her mother.
42. Before parting, it would be of relevance to mention that „The
Electricity Act 2003‟ has been made applicable to Union Territory of Jammu
and Kashmir w.e.f 31st October 2019. Further, in exercise of powers
conferred by Section 177 of the Electricity Act 2003, Central Electricity
Authority has enacted regulations for measures relating to safety and electric
supply, namely, Central Electricity Authority (Measures relating to Safety
and Electric Supply) Regulations, 2010, which have been further amended
from time to time. These rules have been framed with the object that while
providing robust electricity infrastructure, safety measures are provided to
prevent humans and animals from being electrocuted. However, this court
has recently come across various cases, wherein, people died due to
electrocution across Union Territory of Jammu and Kashmir. It appears that
deaths due to electrocution as well as bodily injuries due to electric shocks
are ignored as mere accidents, also it appears that safety measures, at all
times, related to the installation of electricity infrastructure like installation
of transmission lines, transformers are usually ignored. In order to save
precious lives, this Court deems it appropriate to constitute committee of
three members, headed by Commissioner/Secretary, Power Development
Department, Government of Jammu and Kashmir and Chief Engineer,
Power Development Department Jammu and Chief Engineer, Power
Development Department Kashmir, Chief Engineer, Power Development
Department, Union Territory of Ladakh as three members of the committee.
The composition of the committee will be as follows.
1. Commissioner/Secretary, PDD (Chairman)
2. Chief Engineer, PDD Jammu (Member)
3. Chief Engineer, PDD Kashmir (Member)
4. Chief Engineer, PDD Ladakh (Member)
43. The committee shall meet twice every month and monitor/ensure
implementation of statutory safety measures and regulations as enshrined in
Central Electricity Authority (Measures relating to Safety and Electric
Supply) Regulations, 2010 in letter and spirit. Further, it is a matter of
common knowledge that maximum cases of electrical accidents arise due to
live wires lying on the ground or hanging at arms length, overhead wires
passing within reachable distance of human hands, in this regard, District
Magistrates of all districts in Jammu & Kashmir and Ladakh shall ensure
compliance of Regulation 58 of Central Electricity Authority (Measures
relating to Safety and Electric Supply) Regulations, 2010 on war footing i.e.
within a period of three weeks, which provides for clearance above ground
level of conductors of overhead lines including electricity service lines.
44. The colossal loss of human lives and especially children is totally
unacceptable, grim and heart rending, such unfortunate deaths continue to
occur and the statutory regulations are being flouted with impunity which is
the root cause of such deaths/accidents. Article 21 of constitution ensures
fundamental rights to each citizen of the country which are inalienable in
nature and guarantees citizens right to live and to be treated as an individual
of worth. It is in this backdrop, all stake holders should affirm to a fact that
payment of compensation cannot be a substitute for loss of life and limbs.
Death caused due to failure to follow electricity safety measures by
authorities infringes upon the indefeasible constitutional rights of citizens. It
is expected that aforesaid directions shall be implemented forthwith without
a fail in an endeavour to save and protect the lives of citizens. In absence of
safety measures, it can safely be presumed that authorities have the
knowledge of danger which the live wires can cause and such negligence
will be an act beyond mere mistake or excusable accident, which will fasten
criminal negligence on concerned authorities.
45. The Registrar Judicial, Jammu is directed to forward the copy of
this judgment to Commissioner/Secretary, Power Development Department,
Government of Jammu and Kashmir, Chief Engineer Power Development
Department-Jammu, Chief Engineer, Power Development Department-
Kashmir, Chief Engineer, Power Development Department, Union Territory
of Ladakh and District Magistrates of all districts in Union Territory of
Jammu and Kashmir and Ladakh for compliance.
46. The Petition stands disposed of with aforementioned directions.
(Wasim Sadiq Nargal)
Judge
JAMMU
27.04.2023
RAM MURTI
Whether the judgment is reportable ? Yes
Whether the judgment is speaking ? Yes
