Jammu & Kashmir High Court
State Of J&K And Others vs Smt. Manjeet Kour And Others on 21 August, 2023
Sr. No.08
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
LPA No.92/2019
State of J&K and others ..... Appellant(s)
Through: Mr. Dewakar Sharma, Dy. AG
Vs
Smt. Manjeet Kour and others
..... Respondent(s)
Through: Mr. Rameshwar P. Sharma, Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR,JUDGE
HON'BLE MR. JUSTICE RAHUL BHARTI,JUDGE
JUDGMENT
21.08.2023
Sanjeev Kumar-J
1. This intra Court appeal by the then State of Jammu & Kashmir (now
UT of Jammu & Kashmir) and four others is directed against the judgment
dated 01.02.2017 passed by the learned Single Judge ["the Writ Court"] in
OWP No.192/2004 titled Manjeet Kour and others v. State of J&K and
others. In terms of the judgment impugned, the respondents herein have
been held entitled to a lump sum compensation of Rs.11,50,000/- minus a
sum of Rs.50,000/-, already granted by way of interim compensation, along
with interest @ 7.5% to be apportioned among the respondents as per the
detail given in the judgment itself.
2. Before we advert to the grounds of challenge urged by the learned
counsel for the appellants to assail the judgment impugned, we deem it
appropriate to give brief factual background leading to the filing of this
appeal.
Predecessor-in-interest of the respondents, namely, Raghuvir Singh
got electrocuted on 05.03.2003 at about 5 a.m. when he inadvertently came
into contact with live/exposed electric transformer. The incident was
reported to the police and FIR No.23 dated 05.03.2003 came to be registered
in Police Station, Miran Sahib Tehsil R.S.Pura. The body of the deceased
was subjected to postmortem wherein the doctors found the deceased having
died due to burn injuries received at different parts of the body. The
respondents approached the appellants with a claim for compensation but the
same was refuted by the appellants on the ground that the deceased Raghuvir
Singh had lost his life due to his own negligence and, therefore, the
appellant-department was not obliged to compensate them. Feeling helpless
and dejected, the respondents filed OWP No.192/2004, which was
considered by the Writ Court and disposed of vide judgment impugned dated
01.02.2017.
3. The impugned judgment is assailed by the appellants primarily on the
ground that the Writ Court has allowed the writ petition and granted
compensation to the respondents without returning a specific finding as to
the negligence of the appellant-department. It is argued that the incident of
electrocution, which consumed life of the deceased happened due to the
negligence of the deceased, who had strayed into the live electric
transformer kept away from the road at a secured place. The appellants have
also found fault with the judgment impugned in respect of the computation
of compensation made by the Writ Court, in that, it is contended that in view
of the settled legal position enunciated in National Insurance Company Ltd.
v. Pranay Sethi and others, (2017) 16 SCC 680, the wife and four minor
children were entitled to Rs.40,000/- each on account of loss of consortium
whereas the Writ Court has granted 1.00 lakh to the wife and Rs.50,000/-
each to the children under this head.
4. Having heard learned counsel for the parties and perused the material
on record, we are of the considered opinion that the judgment passed by the
Writ Court is perfectly legal and unquestionable. The Writ Court has
returned a clear finding with regard to the negligence of the appellants in
maintaining and securing the exposed electric transformer installed on the
roadside.
5. The aforesaid finding has been returned by the Writ Court on the basis
of report submitted by the Enquiry Officer i.e. Munsiff, R.S.Pura, who was
directed by the Writ Court to conduct such enquiry and submit a report to it.
It has clearly come out in the enquiry that the appellant-department had not
put up any signboard or marking in front of the transformer to caution the
people to stay away. The Enquiry Officer also found that the transformer
was not properly fenced and, therefore, posed a serious threat to the life of
citizens living around it.
6. That apart, it is well settled that when an enterprise or a department of
the Government is engaged in inherently dangerous activity and loss of life
and property is caused on anyone on account of an accident that may occur
in operation of such activity, the enterprise or the department of the
Government, as the case may be, is strictly and absolutely liable to
compensate those, who are affected by such accident.
7. The plea that the accident happened due to the negligence of the
injured or deceased, as the case may be, is not available to such enterprise or
department engaged in hazardous or inherently dangerous activity. At this
juncture, it would be relevant to recall the observations made by the
Supreme Court in the case of M.C.Mehta and others v. Union of India,
1987 (1) SCC 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, for example, in escape of toxic gas the enterprise is strictly and
absolutely liable to compensate all 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."
8. Indisputably, the department of Power Development, which is
engaged in transmission of electricity, is engaged in an activity, which is
hazardous and inherently dangerous. Greater care and caution is required to
be observed in the operation of such activity. The maintenance of electric
wires and transformers in such a way that it does not pose any danger to the
life and property of the citizens is a solemn duty of the department of the
Power Development and any remissness or negligence in maintaining such
utility would invite, both, civil as well as penal action in law. The deceased
husband of respondent No.1 and father of respondent Nos. 2 to 5 got
electrocuted when he suddenly came in contact with an exposed electric
transformer kept on one side of the road by the appellants. As is rightly
concluded by the Writ Court, not only electric transformer had been kept on
the road side unguarded but the department had also failed to put up a
danger sign so as to warn the people to avoid coming near the transformer.
9. In view of the aforesaid, we are of the considered opinion that the
findings of fact returned by the Writ Court in respect of negligence of the
appellant in maintaining electric transformer is unquestionable and need not
be interfered with. The Writ Court has also applied the general principles
laid down under the Motor Vehicles Act, 1988 for computation of
compensation in motor accidents cases. We, however, find that the Writ
Court has gone little overboard in granting a sum of Rs.1,00,000/- as loss of
consortium to the wife and Rs.50,000/- each to the minor children of the
deceased.
10. Hon'ble the Supreme Court in the case of Pranay Sethi (supra) has
already laid down the parameters to be kept in mind while assessing
compensation payable in the cases of deaths in motor vehicle accidents. The
Writ Court has, by and large, followed the aforesaid parameters but erred in
granting amount under the head loss of consortium. We are in agreement
with the learned counsel for the appellants that in terms of the law laid down
by the Supreme Court, the respondents were entitled to Rs.40,000/- each on
account of loss of consortium. To the aforesaid extent, we are inclined to
modify the judgment.
11. For the foregoing reasons, the appeal is partly allowed and the amount
of compensation awarded by the Writ Court is reduced by Rs.1,00,000/- and
rest of the judgment is kept intact.
Disposed of, accordingly.
(Rahul Bharti) (Sanjeev Kumar)
Judge Judge
Jammu
21.08.2023
Vinod, PS
Whether order is speaking: Yes
Whether order is reportable: Yes/No
