Union Territory Of Jammu & Kashmir vs Mohammad Amin Bhat
2023 Latest Caselaw 1316 j&K/2

 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                AT SRINAGAR
                                                       Reserved on: 19.09.2023
                                                       Pronounced on: 13.10.2023.

                                              RFA No. 9/2020
                                              CM Nos. 1191/2020, 6132/2020 &
                                              6237/2020.


  1. Union Territory of Jammu & Kashmir
     through Commissioner/Secretary to
     Govt, Power Development Department,
     Civil Secretariat, Srinagar/Jammu.

  2. Development Commissioner, Power J&K
     Srinagar/Jammu.

  3. Chief Engineer, Electric Maintenance
     and RE Wing Kashmir Srinagar.

  4. Superintending Engineer, Electric
     Maintenance and RE Circle Bijbehara
     District Anantnag.

  5. Executive Engineer, Electric
     Maintenance and RE Division Bijbehara
     District Anantnag.

  6. Assistant Executive Engineer, Electric
     Sub-Division Aishmuqam Bijbehara
     District Anantnag.

                                                                 .....Appellants.

                    Through: Mr. Alla-ud-Din, Advocate.


               Vs


  1. Mohammad Amin Bhat S/o Abdul
     Aziz Bhat R/o Krangsoo Anantnag
     through wife Shakeela Akhter W/o
     Mohammad Amin Bhat R/o
     Krangsoo Anantnag.
                                                   .....Contesting Respondent.

Through: Mubashir Rabbani and Naveed
Koul, Advocates.

  2. Mr. Mushtaq Ahmad Malla,
     Assistant Executive Engineer,
     Electric Sub Division Aishmuqam
     Bijbehara District Anantnag.

  3. Mr. Mohammad Ashraf, Assistant
     Engineer, Electric Maintenance and
                                       2              RFA No. 9/2020




       RE Sub Division Aishmuqam
       Bijbehara Division Anantnag.


     4. Mr. Sajad Ahmad, Jr. Engineer
        Electric Maintenance and RE Sub
        Division Aishmuqam Bijbehara
        Division District Anantnag.


     5. Mr. Gh. Mohammad Raina,
        Resident of Akad Anantnag Electric
        Inspector Electric Sub Division
        Aishmuqam Bijebehara District
        Anantnag.
                                              ..... Proforma respondent(s)



 Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE


                                JUDGMENT

1. The instant Civil Ist Appeal has been filed by the appellants

herein against the judgment and decree dated 17.01.2019 (for

short "impugned judgment and decree") passed by the court

of Principal District Judge, Anantnag (for short "the trial

court") in case titled as "Mohammad Amin Bhat vs. State of

J&K & ors".

2. The facts giving rise to the filing of the instant appeal would

reveal that the plaintiff/respondent 1 herein filed a suit as an

indigent person praying for grant of compensation therein to

the tune of Rs. 80,00,000/- (Rupees Eighty Lacs) from the

defendants/appellants and proforma respondents herein on

account of injuries sustained by him during electrocution

caused by negligence of the defendants/appellants herein.

The defendants/appellants herein filed their response to the

suit whereafter the trial court framed the following issues:

(i) Whether the plaintiff was engaged as daily rated worker by the defendant? (OPP)

(ii) Whether the plaintiff lost his right hand/arm, while fixing H.T.

Electric line at Malikgund, Siligam due to electrocution? (OPP)

(iii) In case issue no. 2 is proved in affirmative, whether the accident was caused due to the negligence of the department? (OPP)

(iv) Whether the plaintiff is entitled to compensation, if so, what would be the quantum of compensation? (OPP)

(v) Whether the plaintiff got electrocuted because of his own negligence, as such is not entitled to any compensation? (OPP)

(vi) Relief.

3. The plaintiff/respondent 1 herein besides appearing himself in

the witness box as his own witness examined five witnesses,

namely, Mohammad Hussain Bhat, Mohammad Amin Bhat,

Ghulam Rasool Bhat, Ghulam Rasool Tantray and Dr. Younis

Kamal whereas the defendants/appellants herein examined

one Sajad Hussain Gatoo, Ghulam Mohammad Raina and

Mushtaq Ahmad as their witnesses being the officials of the

department.

4. The trial court after conducting trial of the suit and

considering the matter in its entirety proceeded to pass the

impugned judgment and decree holding the

plaintiff/respondent 1 herein entitled to the compensation of

Rs. 22,20,000/- payable by the defendants/appellants herein

along with interest @ 10% per annum from the date of the suit

till the payment of the decretal amount, however, with the

condition that the decretal amount be paid through the trial

court, so that the requisite court fee is charged before making

payment to the plaintiff/respondent 1 herein, owing to the

reason that the suit had been permitted to be instituted by the

plaintiff/respondent 1 herein as an indigent person.

5. The appellants herein have challenged the impugned judgment

and decree on the grounds urged in the memo of appeal.

Heard learned counsel for the parties and perused the record.

6. Perusal of the record would tend to show that the

plaintiff/respondent 1 had averred in the suit that on

14.08.2013 he got electrocuted due to the negligence of the

defendants 6 to 10 in the suit being proforma respondents

herein while being ordered to set right high tension electric line

at Malikgund Siligam, Tehsil Pahalgam by assuring him that

the power supply would be stopped during his working on the

high tension line and that while undertaking repair of the said

high tension line, the plaintiff/respondent 1 herein suffered

severe electric shock upon coming into contact with the said

high tension electric line and sustained serious injuries

resulting into loss of his right hand and severe damage to his

left hand rendering him permanently disabled.

The plaintiff/respondent 1 herein also averred in the suit

that he was earning Rs. 20,000/- per month privately while as

an electric fitter after his job hours with the

defendants/appellants herein drawing Rs. 5,000/- per month

from the department of the defendants/appellants herein and,

as such, would have been regularized while working with them

being a matriculate and also promoted to the post of Inspector,

however, on account of the disability suffered became unable

to earn livelihood and became dependant on constant medical

treatment.

7. Perusal of the record also reveals that the

defendants/appellants herein in the written statement filed to

the suit stated that the plaintiff/respondent 1 herein was

neither a regular employee of the department nor a daily wage

labourer and, as such, payment of Rs. 5,000/- per month to

him by the department does not arise and that the suit filed by

the plaintiff/respondent 1 herein is false and frivolous and

that the officials of the department heard about the mishap

and denied to have authorized the plaintiff/respondent 1

herein to work on a live high tension wire and that the said

accident possibly might have happened with the

plaintiff/respondent 1 herein while performing some private

work and that the appellants herein were neither negligent nor

callous in performing their official duties and lastly that the

plaintiff/respondent 1 herein is not entitled to be paid any

compensation for the injuries sustained by him.

8. Perusal of the record of the trial court would reveal that the

plaintiff/respondent 1 herein upon appearing his own witness

and his other witnesses established the fact that he was

engaged by the officials of the department on 14.08.2013 in

connection with repairing the fault of high tension electric line

at Malikgund Siligam, Pahalgam under their assurance that

electric supply has been stopped when in fact it was not so

and the plaintiff/respondent 1 herein while trying to repair the

said high tension electric line under the instructions of the

officials of the department suffered electric shock resulting into

severe injuries to both of his arms and in the end, lost his

right hand and got his left hand severely damaged.

It also came to be proved with substantial credible and

clinching evidence by the plaintiff/respondent 1 herein and his

witnesses that he besides working as a private electric fitter

was also working with the department and that on account of

the disability suffered by him he lost his earning capacity

besides having incurred considerable amount of money on

medical treatment.

9. Perusal of the record of the trial court would also reveal that

the defendants/appellants herein examined three witnesses,

namely, Sajjad Hussain Gatoo, Junior Engineer and Ghulam

Mohammad Raina, line man of the area and one officer namely

Mushtaq Ahmed of the department.

Witness-Sajjad Hussain Gatoo in his statement recorded

on 27.08.2018 deposed that on the date of occurrence he was

working as Junior Engineer and thirty six villages were falling

within his jurisdiction and that he was working at the Billing

Center, Aishmuqam on the date of the accident when he

received a phone call from the Incharge sector

Siligam/Inspector that during conducting of repairs of the

transformer at Malikgund, plaintiff/Mohammad Amin Bhat

was along with him and that accidently, the plaintiff touched

the electric line and sustained an electric shock whereafter the

Incharge, namely, Ghulam Mohammad Raina got the plaintiff

admitted in Seer Hospital and thereafter to the hospital at

Janglat Mandi and therefrom to SMHS Hospital, Srinagar. The

witness further deposed that at his instance, the AEE got a

report registered about the accident in the police station

concerned.

During cross-examination, the said witness stated that

he does not know as to whether the plaintiff's both hands

touched the electric line or not as he was not on spot and that

he came to know about the accident through Ghulam Mohd.

Raina, Incharge and that in the SMHS hospital he came to

know that the plaintiff/respondent 1 herein has sustained

injuries in both his hands and that under his instructions the

plaintiff/respondent 1 herein was admitted in the hospital and

his both hands were not making any movements and that he

submitted a report about the accident to AEE.

Witness-Ghulam Mohammad Raina of the defendants

examined on 24.05.2018 deposed before the trial court that on

the date of the accident a fault had occurred in the electric line

whereupon the power supply in the line was snapped and for

ascertaining the fault, he along with the plaintiff/respondent 1

herein reached the site of transformer and sought to remove

the fault and in the meantime, someone set the electric supply

on which resulted into an electric shock to the

plaintiff/respondent 1 herein whereafter he took the injured to

Seer Hospital, then to Anantnag Hospital and therefrom to

SMHS Hospital, Srinagar and that he stayed for the night

therein in the hospital and came back to his house on the next

day and that though the doctors in the hospital said that the

plaintiff-injured would be alright, yet thereafter his right arm

was amputated and that none from the department came to

see the injured-plaintiff.

The witness in the cross-examination stated that the

injured-plaintiff remained hospitalized for about a month and

during this period, he around ten times visited the hospital to

see the plaintiff/respondent 1 herein along with his son who

has been working in the hospital.

The witness further stated that he was working those

days as an Inspector in the department and had no knowledge

and information as to who connected the power supply on that

day when the plaintiff-injured was present at the transformer.

The witness further stated that the Assistant Engineer

and Junior Engineer of the Electric Department visited the

injured-plaintiff at his residence and that from Srinagar

Hospital the injured was shifted to Bone and Joint Hospital

and that he does not know as to whether the injured-plaintiff

was treated in Jammu or any other hospital outside.

Witness-Mushtaq Ahmed examined on 16.07.2018

stated in the witness box that he was on the date of accident

on yatra duty and during that period he received a call from

the Junior Engineer that at Aishmuqam a need based worker

suffered an electric shock whereafter he directed the Junior

Engineer to visit the site, examined the situation and take the

injured to the hospital as also to submit an information to the

police whereafter he instructed the whole team including the

Junior Engineer and Inspector to look after the injured in the

hospital and that he discussed the matter with his department

since the injured-plaintiff was working on need basis and

proposed that he be converted as a daily wager whereafter the

department considered the same and in pursuance of a

circular issued by the Chief Engineer, the plaintiff/respondent

1 herein was given regular wage/salary not on need basis and

also proposed that the plaintiff/respondent 1 herein be given

some compensation which was not pursued by the

plaintiff/respondent 1 herein and as such no compensation

was given to him.

During cross-examination, the witness stated that he

knew the plaintiff/respondent 1 herein from the year 2013 and

that on the date of accident he was not present on spot and

that he came to be informed telephonically by the Junior

Engineer and that he does not know as to whether Junior

Engineer reached on spot or not, got the plaintiff/respondent 1

herein admitted in the hospital or not or that whether any

contribution was made for the expenses incurred by the

injured-plaintiff, however, he and his other colleagues from

own pocket paid some amount of money to the

plaintiff/respondent 1 herein as the plaintiff's both hands

became useless on account of the electric shock and that the

plaintiff/respondent 1 herein receives wages as a daily wager

pursuant to a circular on the basis of muster rolls which

muster rolls were produced by the witness and were exhibited.

10. What emerges from the record of the trial court including the

statements of the witnesses, be it the witnesses of the

plaintiff/respondent 1 herein or the witnesses of the

defendants, it got established before the trial court that the

plaintiff/respondent 1 herein lost his right hand and suffered

severe damage to his left arm on account of electric shock

suffered by him on 14.08.2013 while working under the

instructions of Ghulam Mohammad Raina, Inspector in the

department owing to his negligence, proving issues 1 to 4

successfully whereas in respect of issue 5 onus whereof to

prove the same was on the defendants/appellants herein, to

prove whether the plaintiff/respondent 1 herein got

electrocuted because of his own negligence and thus not

entitled to any compensation, no evidence worth the name

came to be produced or led by the defendants/appellants

herein as the witnesses of the defendants/appellants herein

instead admitted the fact that the plaintiff/respondent 1 was

working on need basis in the department and that he

undertook the repair work of the electric line under the

instructions of Ghulam Mohammad Raina, Inspector who

accompanied the plaintiff/respondent 1 herein. Thus, in

presence of the said flawless and clinching evidence, it can

safely be said that the defendants/appellants herein failed to

either rebut or discard the evidence produced by the

plaintiff/respondent 1 herein qua the issues 1 to 4 and also

failed to prove issue no. 5, onus whereof was on them to prove

the same.

11. In view of the aforesaid facts and circumstances even though

the primary liability of the incident is upon the Inspector-

Ghulam Mohammad Raina (proforma defendant 10 in the suit

and proforma respondent 5 in the appeal) yet the said liability

would be vicarious vis-à-vis the defendants 1 to 6/appellants

herein as it is settled principle of law of Torts that master is

answerable for every such wrong of his servant as is

committed by him in the course of his service though no

express command or privity of master is proved and such

wrongful act may not be for the masters benefit. This doctrine

of liability of master for the acts of his servant is based on the

maxim "respondent superior", meaning "let the principal be

liable" as it puts the master in the same position as if he has

done the act himself. A reference herein to the judgment of the

Apex Court passed in case titled as "State of Rajasthan Vs.

Mst. Vidyawati reported in AIR 1962 SC 933 would be

relevant herein wherein it has been held that the doctrine of

sovereign immunity based on common law principle that the

king commits no wrong is not applicable in principle or public

interest that the State should not be held liable vicariously for

the tortuous acts of the servants and that State like any other

employer is vicariously liable.

12. What emerges from above is that the trial court has rightly

fastened the defendants/appellants herein with liability to

compensate the plaintiff/respondent 1 herein while importing

the principles for computation of compensation payable to the

plaintiff/respondent 1 herein from the mechanism provided

under the provisions of the Motor Vehicles Act, 1988 and by no

sense of imagination, the compensation awarded to the

plaintiff/respondent 1 herein can said to be unfair or

unreasonable except for the rate of interest awarded on the

amount of compensation by the trial court @ 10% per annum

which, accordingly, is slashed down @ 7% per annum.

13. Viewed thus, for what has been observed, considered and

analyzed hereinabove, the impugned judgment and decree

does not call for any interference. Resultantly, appeal fails and

is, accordingly, dismissed upholding the impugned

judgment/decree passed by the trial court with the aforesaid

modification in the rate of interest.

14. Registry shall retain the scanned copy of the record of the trial

court on the file of the instant appeal.

(Javed Iqbal Wani) Judge SRINAGAR 13.10.2023 Naresh, Secy.

                  Whether the order is speaking:      Yes
                  Whether the order is reportable:    Yes