Jammu & Kashmir High Court
Sonia Devi @ Sonia vs State Of J&K Through ... on 4 October, 2023
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
OWP No. 811/2012
IA No. 01/2015
Reserved on: 21.09.2023
Pronounced on:04.10.2023
Sonia Devi @ Sonia, age 40 years,
W/O Surinder @ Surinder Ram .....Petitioner(s)
R/O Kalaur Bagahi, P.O Baagahi Bazar,
District Gopal Ganj, (Bihar),
A/P Chatta, Tehsil & District Jammu.
Through :- Mr. Vikas Mangotra, Advocate
v/s
1. State of J&K through Commissioner/Secretary,
Power Development Department, .....Respondent(s)
Civil Secretariat, Jammu.
2. Chief Engineer, Electricity Department,
Jammu.
3. Executive Engineer, Division-II,
Gandhi Nagar, Jammu.
4. Mohit Kumar Koul,
S/O Jagdish Kumar Koul,
R/O H.No. 779, Subash Nagar, Jammu,
Junior Engineer, Power Development
Department, Incharge Area, Chatha, Jammu.
5. Yashpal S/O Sansar Chand,
R/O Khandwal, Teh & District Jammu,
Lineman of Power Development Department,
Area Chatha, Jammu.
Through :- Mr. Ravinder Gupta, AAG
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. At this pre-admission stage, the instant petition is taken up for final
disposal, in view of the consensus between the learned counsel for the
parties.
2. The present writ petition filed by the petitioner under Article 226 of the
Constitution of India read with Section 103 of the Constitution of Jammu &
Kashmir, seeks indulgence of this Court for issuance of appropriate writ of
mandamus thereby directing the respondents to pay compensation to the
petitioner to the tune of Rs. 12.00 lakhs, on account of 40% permanent
disability suffered by her due to the negligence of the respondents.
3. Petitioner pleaded that on 16.01.2011, while she was going to a shop and
when she reached at Chatha Mill, Main Road, Jammu at about 7:00 pm, all
of a sudden, live HT Voltage Electric Line broke and fell on her, thereby
causing injuries on her body as well as on right hand and shoulder; that she
was immediately rushed to the GMC Hospital, Jammu, where she remained
admitted and was discharged on 11.02.2011 and during the treatment, the
petitioner's index finger chassed with amputation of index finger; that
respondent nos. 4&5 employees of the Electric Department as Incharge of
Chatha area and subordinate to the other respondents, were duty bound to
maintain the electric wires of said area, but they had not maintained the
electric line of that area, therefore, the said respondents were careless and
negligent while performing their duties under law; that the matter was
reported at Police Post Chatha and after investigation, the concerned police,
produced the chargesheet for their negligence, against the respondent nos.
4&5.
4. It is being pleaded next that the State being a welfare State is having its
liability to ensure the safety of its subjects as the right to life and liberty has
been granted under Article 21 of the Constitution of India, the State being
engaged in hazards and dangerous activities, is strictly under an obligation
to compensate the petitioner in respect of the negligence or carelessness on
the part of its officials; that in the present case, the respondents were
negligent in not maintaining and removing the old electric lines and this
inaction on their part had put the life of the inhabitants into danger, as such,
the petitioner who became permanently disabled on account of the
negligence of the respondents, is entitled to compensation, claiming to the
tune of Rs.12.00 lacs.
5. Pursuant to notice, respondents filed objections, asserting therein that the
present petition is not maintainable as none of the fundamental, statutory or
legal rights of the petitioner has been violated; that it involved the disputed
question of law and facts which cannot be adjudicated by invoking the
extra ordinary writ jurisdiction of this Court; that the respondents have
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 and likewise structured arrangement has been prepared and
crystallized in cases of grievous injuries and disabilities but the petitioner
had not submitted any document to process her case for compensation
permissible under rules; that maintenance of electric wire is taken up from
time to time and electric fault is not in the control of an individual, as due
to overloading the wires conductors get snapped, however, the shutdown is
required for replacement of the worn out conductor, the concerned field
staff keeps doing it for the upkeep of the system; that, infact, various
schemes have been introduced to change the conductor to cables; that there
is no negligence on the part of the respondents as the petitioner never
approached the respondent-department for getting any compensation along
with documents for processing of her case, as such, the present writ petition
deserves to be dismissed outrightly.
6. Heard, perused and considered.
7. Learned counsel for the petitioner has argued that the petitioner has
suffered 40% permanent disability due to the negligence of the
respondents, as they failed to protect the life of the petitioner, as per Article
21 of the Constitution of India and the respondents being engaged in
hazardous and dangerous activities are liable to pay compensation, as
claimed to the tune of Rs. 12.00 lacs, by the petitioner. He has further
argued that after the disablement of the petitioner, she also totally lost her
holding capacity of her right hand and became disabled lady, unable to do
her labourer work in future and also unable to maintain her children and
family, as such, she lost her 100% working capacity of her right hand. It
was finally prayed that the present petition be allowed and petitioner be
granted compensation.
8. Learned AAG, ex adverso, argued that the respondents were not negligent
at all, as the petitioner suffered injuries because of her own negligence. He
has further argued 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 and also in cases of
grievous injuries and disability. He has further argued that there is no
negligence on the part of the respondents as the petitioner had never
approached the respondent-department for claiming any compensation,
along with documents for processing of her case and finally prayed that the
present petition be dismissed.
9. The Hon'ble Apex Court in "M P Electricity Board vs Shail Kumari,"
reported in 2002 AIR (SC) 551, wherein a case of live electric wire
snapped and fell on road due to illegal act of a stranger for pilferage
purpose, deceased came in contact with live wire and died of electrocution,
the Electricity Board was held liable to pay compensation, even though
there was no negligence on its part. Vide judgment dated 17.12.2014
passed the Hon'ble Apex Court in case titled "Raman v Uttar Haryana Bijli
Vitran Nigam Ltd. & Ors" (Civil Appeal No. 11466 of 2014 (Arising out of
SLP (C) No. 8113 of 2014), by holding that a boy aged 4 years electrocuted
by Live High Tension wire of Bijli Vitran Nigam who lost both his legs
and one arm, maintained order of the Single Bench of the High Court,
whereby the petitioner was held entitled to compensation of Rs.60.00 lacs.
10. Petitioner, a labourer by profession from Bihar, at the age of 40 years had
met with an accident of electrocution, at Chatha Mill, Main Road, Jammu,
while she was going to purchase household items on a shop on 16.01.2011,
when she got electric shocks due to live HT-Voltage Electric Wire broken
and fallen on her, as she received deep burn injuries, as a result of
electrocution and remained hospitalized in GMC Hospital Jammu. It is an
admitted case, that petitioner received electric shocks, in coming in contact
with live HT-Voltage Electric wire, which had suddenly broken and fallen
on the petitioner. Registration of FIR No. 11/2011 at Police Station Satwari
is a sufficient proof to prove negligence on the part of respondents. As per
medical report, issued by District Medical Board of Doctors, it has been
certified that the petitioner became permanently disabled for 40% as the
petitioner's right hand's index and middle fingers amputated through anti-
joint. Petitioner for her disablement caused due to negligence of
respondents is thus found entitled to compensation, in view of tortuous and
vicarious liability of the respondents. The next question which comes for
consideration is the amount to which the petitioner is entitled to, by way of
compensation in the present petition. The Court infuse some guess work
while assessing the future earning of the petitioner as the petitioner had
suffered right, index and middle fingers amputated through anti-joint.
11. Perusal of the record reveals that the petitioner on 16.01.2011, immediately
after suffering electric shock due to live HT-Voltage Electric Wire
suddenly broken and fallen on her, was rushed to GMC Hospital, Jammu
where she received treatment and remained admitted from 16.01.2011 to
11.02.2011. The injury suffered by the petitioner, due to electric burn,
unfortunately resulted into amputation to right hand's index and middle
fingers through anti-joint. The disability certificate issued dated 27.05.2011
by the Board of Doctors of Government records 40% permanent disability
of the petitioner due to the injuries suffered by her.
12. The physical disability though certified by the Medical Board is 40%,
however, such a disability has to be related to functional disability.
Schedule-1 under Section 2(1) and (4) of the Workmen's Compensation
Act, 1923, with regard to determine percentage of loss of earning capacity
in permanent or permanent partial disability, is handy for this purpose.
Petitioner has suffered permanent partial disability of her right hand with
amputation of two fingers (index and middle) which as per Item No.9 of
Part-II of Schedule amounts to 20% loss of earning capacity. Therefore, the
loss of earning capacity of the petitioner has to be accepted at 20%.
13. Petitioner's age at the time of unfortunate accident was 40 years. She was
stated to be a labourer from the State of Bihar. In the year 2011, on a
guesswork, the daily payment to such workers even if unskilled, was
around Rs.200/-. On such a fact to be noticed, the monthly income of the
petitioner, even if she would have got work for twenty four days in a
month, should be Rs. 4800/-. At the age of 40 years, the future income is to
be assessed by stepping up the same with 25%. With addition of 25%, the
income of the petitioner is to be accepted at (4800+1200)=Rs.6000/-. On a
loss of 20% of the earning capacity in view of Schedule of the Workmen's
Compensation Act 1923, monthly loss of income shall be Rs.1200/- which
annually comes to (1200x12)=Rs.14,400/-. This figure has to be accepted
as multiplicand.
14. Having regard to the age of 40 years, on the principles of law laid down in
case titled "Sarla Verma & Ors vs Delhi Transport Corporation &
Anr"., reported as (2009) 6 SCC 121 and reiterated in case titled
"National Insurance Company vs Pranay Sethi & Ors", reported as
(2017) 16 SCC 680, by the Hon'ble Apex Court, at the age of 40 years, the
applicable 'multiplier' shall be 15.
15. With annual loss of Rs. 14,400/- as multiplicand and use of 15 as
multiplier, the total loss of income to the petitioner comes to (14400x15)
Rs.2,16,000/-. Besides loss of income, the petitioner is also found entitled
to Rs.50,000/- as medical expenses on her treatment; Rs.50,000/- for pain
and sufferings and Rs.1,00,000/- as damages for amenities of life.
Petitioner is thus found entitled to the compensation for disability as per
following details:
1. Loss of income Rs.2,16,000/-
3. Medical expenses Rs.50,000/-
4. Pain and suffering Rs.50,000/-
5. Damages for amenities of life Rs.1,00,000/-
Total Rs.4,16,000/-
16. Having regard to the foregoing discussion and reasons stated hereinabove,
the petition is allowed/granted holding petitioner entitled to Rs.4,16,000/-
(four lac and sixteen thousand rupees only) as compensation for her
permanent disability along with simple interest @ 10% per annum except
the loss of income, from the date of institution of this petition, till
realization of the amount. The respondents are directed to make payment,
within six weeks, from the date a certified copy of this judgment is made
available to the respondent nos.1 and 2 for compliance. No order as to
costs.
17. The writ petition along with pending application(s) is disposed of.
(M A Chowdhary)
Judge
JAMMU
04.10.2023
Vijay
Whether the order is speaking: Yes
Whether the order is reportable: Yes
