Karnataka High Court
Kumari Chandana K vs Principal Secretary on 4 August, 2022
Bench: S.Sunil Dutt Yadav
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF AUGUST 2022
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.1383 OF 2020 (GM-KEB)
C/W
WRIT PETITION No.53302/2018
WRIT PETITION No.6087/2019
IN W.P. No.1383/2020
BETWEEN:
MRS. REKHA
WIFE OF LATE N. SUBRAMANYA
AGED ABOUT 34 YEARS
RESIDING AT NAGANAHALLI VILLAGE,
UCHANGI POST, YESALUR HOBLI
SAKALESHPUR TALUK.
HASSAN DISTRICT - 573 137.
... PETITIONER
(BY SRI SHRIDHAR PRABHU, ADVOCATE)
AND:
1. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
K.G. ROAD
BENGALURU - 560 001
REPRESENTED BY ITS
MANAGING DIRECTOR.
2. THE CHAMUNDESHWARI ELECTRIC
SUPPLY CORPORATION LIMITED
NO.29, KAVERI GRAMEENA BANK ROAD
VIJAYANAGAR 2ND STAGE,
HINKAL, MYSURU - 570 017
REPRESENTED BY ITS
MANAGING DIRECTOR
2
3. ELECTRICAL INSPECTOR
OFFICE OF THE ELECTRICAL INSPECTOR
SAGARA NILAYA, 1 FLOOR
SRI RAGHAVENDRASWAMY TEMPLE ROAD
I CROSS, RAVINDRA NAGAR
HASSAN - 573 201.
4. THE STATE OF KARNATAKA
DEPARTMENT OF ENERGY
VIKASA SOUDHA
DR. AMBEDKAR VEEDHI
BENGALURU - 560 001
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY.
... RESPONDENTS
(BY SRI H.V. DEVARAJU, ADVOCATE FOR R1;
SRI D.C. PARAMESWARAIAH, HCGP FOR R3 & R4;
SMT. PADMA S. UTTUR, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF MANDAMUS
OR ANY OTHER WRIT OR ORDER OR DIRECTION OF THE LIKE NATURE
AND DIRECT THE RESPONDENTS TO PAY THE COMPENSATION
AMOUNT OF RS.5,00,000/- (RUPEES FIVE LAKH ONLY) AS PER 1ST
RESPONDENT KPTCL'S ORDER BEARING NO.KPTCL/B7/2476/95-96
VOL.1 BENGALURU, DATED 09.11.2017, PRODUCED HEREIN AS
ANNEXURE-A AND ETC.
IN W.P. NO.53302/2018
BETWEEN:
KUMARI CHANDANA K.,
D/O KS KRISHNAMURTHY,
AGED ABOUT 15 YEARS
RESIDING AT NO.192/27,
10TH CROSS, LOTTEGOLLAHALLI,
DEVI NAGAR, BENGALURU - 560 094.
REPRESENTED BY HER NATURAL GUARDIAN
AND FATHER KS KRISHNAMURTHY
S/O SOORE GOWDA
AGED ABOUT 43 YEARS
RESIDING AT NO.192/2017
10TH CROSS, LOTTEGOLLAHALLI,
3
DEVI NAGAR,
BENGALURU - 560 094.
... PETITIONER
(BY SRI CLIFTON D' ROZARIO, ADVOCATE)
AND:
1. PRINCIPAL SECRETARY
DEPARTMENT OF ENERGY
VIKASA SOUDHA
BENGALURU - 560 001
2. BANGALORE ELECTRICITY COMPANY (BESCOM)
REPRESENTED BY MANAGING DIRECTOR
K R CIRCLE
BANGALORE - 560 002.
3. KARNATAKA STATE COMMISSION FOR
PROTECTION OF CHILD RIGHTS
4TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD,
AMBEDKAR VEEDHI,
SAMPANGI RAMA NAGAR
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI D.C. PARAMESWARAIAH, HCGP FOR R1;
SRI H.V. DEVARAJU, ADVOCATE FOR R2;
R3 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN APPROPRIATE WRIT,
ORDER OR DIRECTION TO THE 1ST AND 2ND RESPONDENT DIRECTING
THEM TO PAY COMPENSATION OF RS.90,00,000/- (RUPEES NINETY
LAKHS ONLY) TO THE PETITIONER ALONG WITH INTEREST THEREON
AND ETC.
IN W.P. NO.6087/2019
BETWEEN:
MUIZZ AHMAD SHARIFF
S/O SHRI MAQSOOD AHMED SHARIF
AGED ABOUT 7 YEARS
RESIDING AT NO.17, 1ST FLOOR, 2ND MAIN,
4
GURANANPALYA B.G. ROAD
BENGALURU - 560 029.
REPRESENTED BY HIS NATURAL GUARDIAN
AND FATHER, SHRI MAQSOOD AHMED SHARIF
S/O LATE SHRI MAQBOOL AHMED
AGED ABOUT 35 YEARS
RESIDING AT NO.17, 1ST FLOOR, 2ND MAIN,
GURANANPALYA B.G. ROAD
BENGALURU - 560 029.
... PETITIONER
(BY SRI CLIFTON D' ROZARIO, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY THE
PRINCIPAL SECRETARY
DEPARTMENT OF ENERGY
VIKASA SOUDHA
BENGALURU - 560 001
2. THE MANAGING DIRECTOR
KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
CAUVERY BHAVAN,
BENGALURU - 560 001.
3. KARNATAKA STATE COMMISSION FOR
PROTECTION OF CHILD RIGHTS
4TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD, AMBEDKAR VEEDHI,
SAMPANGI RAMA NAGAR
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI S. SRIRANGA, SENIOR ADVOCATE FOR
SMT. SUMANA NAGANAND, ADVOCATE FOR R2;
SRI D.C. PARAMESWARAIAH, HCGP FOR R1;
SMT. B.V. VIDYULATHA, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN APPROPRIATE WRIT,
ORDER OR DIRECTION TO THE 1ST AND 2ND RESPONDENT DIRECTING
THEM TO PAY COMPENSATION OF RS.90,00,000/- (RUPEES NINETY
LAKHS ONLY) TO THE PETITIONER ALONG WITH INTEREST THEREON
ANNEXURES-U TO Y AND ETC.
5
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED
ON 28.06.2022 AND COMING ON FOR PRONOUNCEMENT OF ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
S. SUNIL DUTT YADAV. J
This Order has been divided into the following Sections to
facilitate analysis:
A. Nature of Liability of Transmission Utility and 22
Distribution Company:
a) Liability under Common Law
b) Liability under Statutory Framework
imposing duty to ensure safety during
transmission and distribution
C. Relegation to Civil Court after granting 50
provisional compensation
D. Right to claim Compensation irrespective 56
of paymnet of Exgratia/Solatium Amount
I PREAMBLE:
W.P.No.53302/2018, 6087/2019 and 1383/2020 all
are legal actions initiated invoking writ jurisdiction claiming
compensation by way of a public law remedy consequent
upon injuries suffered (W.P.No.53302/2018 and 6087/2019)
and death due to electrocution (W.P.No.1383/2020). As the
legal basis for relief sought similar, as also the claim being
made against the transmission utility and distribution
companies i.e., Karnataka Power Transmission Corporation
Limited ("KPTCL" for brevity), Bengaluru Electric Supply
Company ("BESCOM" for brevity) (W.P.No.53302/2018 and
W.P.No.6087/2019) and Chamundeshwari Electric Supply
Company ("CESCOM" for brevity) (W.P.No.1383/2020), the
matters are taken up together and disposed off by a
common order.
II PRAYER:
2. Following are the relief's sought for in these
petitions:
2.1. W.P.No.53302/2018
(a) Issue an appropriate writ, order or direction to
respondent nos.1 and 2 directing them to pay compensation
of Rs.90,00,000/- to the petitioner along with interest.
(b) Issue a direction to the authorities to install and
maintain all the electrical wires, conductors, apparatus etc.,
in accordance with Electricity Act, Rules and Regulations
etc., so that no untoward incident takes place in future.
2.2. W.P.No.6087/2019
(a) Issue an appropriate writ, order or direction to the
respondent nos.1 and 2 directing them to pay compensation
of Rs.90,00,000/- to the petitioner along with interest
thereon.
2.3. W.P.No.1383/2020
(a) Issue a writ of certiorari or any other writ or order
or direction of the like nature quashing Order
No.KPTCL/B7/2476/95-96 Vol I BENGALURU dated
09.11.2017 vide Annexure-'A'.
(b) To direct the respondents to pay compensation of
Rs.68,74,000/- along with applicable interest.
III FACTS:
3. The facts giving raise to the petitions in each of
the matters are as follows:
3.1. W.P.No.53302/2018
(i) The petitioner who was a student studying in
IX Standard, on 19.10.2017 while carrying an iron mop
stick while climbing the staircase in her residence came in
contact with 11 KV Electrical line and was electrocuted and
suffered grievous injuries.
(ii) LIST OF EVENTS:
19.10.2017 Petitioner suffered injuries due to electrocution.
06.01.2018 Vidyaranyapura P.S. registered a First Information
Report in Crime No.0007/2018 (Annexure-H - Copy
of FIR; Annexure- J - Copy of complaint)
17.09.2018 Electrical Inspector submitted enquiry report
(Annexure-R1 to Statement of Objections of
respondent no.2)
27.03.2018 The Karnataka State Commission for Protection of
Child Rights ("KSCPCR" for brevity) passed an order
directing the Respondent No.2 to pay compensation
of Rs.50,00,000/-and further directed the second
respondent to provide robotic arm to the petitioner
(Annexure-K)
02.08.2018 Representation by petitioner to BESCOM to
implement the order of KSCPCR
26.09.2018 Representation addressed to the Additional Chief
Secretary to the Government, Energy Department
to pay compensation for the disability suffered in
terms of the judgments of the Supreme Court.
30.08.2019 Order was passed in W.P.No.48907/2018 declaring
that the order of Commission is to be treated as
recommendatory and orders to be passed by the
State Government after affording an opportunity of
hearing to the parties.(Annexure-R6 of statement of
objections of respondent no.2)
28.01.2020 Order passed by the Additional Chief Secretary,
Energy Department pursuant to the direction of the
Commission and directing payment of
Rs.2,50,000/- towards rehabilitation and treatment.
05.03.2020 Communication addressed by BESCOM to
implement the order of Additional Chief Secretary,
Energy Department. (Annexure-R8 of statement of
objections of respondent no.2)
3.2. W.P.No.6087/2019
(i) Muizz Ahmed Shariff who is aged about 05 years
08 months, on 16.09.2017 jumped from his building onto
the neighbouring building to retrieve a cricket ball was
electrocuted when he came within the induction zone of 66
KV High Tension Line and suffered severe injuries.
(ii) LIST OF EVENTS:
16.09.2017 Electrical accident resulting in injuries when the
child came within the induction zone of 66 KV High
Tension Line.
17.09.2017 Suddaguntepalya P.S. registered an FIR in Crime
No. 0007/2018 (Annexure-S)
18.09.2017 Counseling Notes of Rainbow Hospital indicating
injuries caused by electrocution (Annexure-C)
----- Discharge Summaries (Annexure - F to N)
19.02.2018 Report of the Electrical Inspector (Annexure-R1 of
statement of objections of respondent no.2)
12.04.2018 KSCPCR passed an order directing the Managing
Director to pay compensation of Rs.40,00,000/- to
the petitioner (Anexure-T)
30.08.2019 Order was passed in W.P.No.26329/2018 declaring
that the order of Commission is to be treated as
recommendatory and orders to be passed by the
State Government.
09.03.2020 Order passed by the Additional Chief Secretary,
Energy Department pursuant to the direction of the
Commission directing payment of Rs.5,00,000/-
towards rehabilitation and treatment.
Representation submitted to Chief Secretary
(Annexure-U) to the Energy Department
-----
(Annexure-V), to Chairman, KPTCL (Annexure-W)
seeking payment of compensation.
3.3. W.P.No.1383/2020
(i) Petitioner is stated to be the widow of late
N.M.Subramanya, an agricultural worker who is stated to
have died in an electrical accident while working in a coffee
plantation while harvesting pepper using an aluminum
ladder which came in contact with 11 KV Feeder Line
resulting in electrocution and he succumbing to the injuries
eventually leading to his death.
(ii) LIST OF EVENTS:
DATE EVENTS
22.02.2018 Petitioner's husband lost his life in an electrical
accident leading to death.
22.02.2018 FIR was registered (Annexure-C)
31.05.2018 Electrical Inspector submitted enquiry report
(Annexure-E)
05.10.2018 Petitioner gave a representation to the Additional
Chief Secretary, Department of Energy,
Government of Karnataka requesting payment of
solatium in terms of the order of the KPTCL dated
09.11.2017.
30.04.2019 KPTCL addresses communication to the
Superintending Engineer disputing report of
Electrical Inspector and declined to pay
compensation.
10.05.2019 CESCOM by its communication to the Executive
Engineer has also declined to pay compensation to
the legal representatives of the deceased
contending that there was no fault on its part.
IV Contentions of Parties :
4. The contentions raised by the parties to the petition in
each of the matters are as follows:
4.1. W.P.53302/2018
(a) Contentions of Petitioner
(i) The petitioner has contended that the principle of
strict liability without defences would apply insofar as
electricity is a dangerous commodity and the respondents
are engaged in supply/transmission and distribution of
electricity which is an inherently dangerous activity. It is
contended that the liability as laid down in Naval Kumar @
Rohit Kumar v. State of H.P. & Ors.1 requires to be
applied. Reliance is also placed on the judgment in the
case of M.C.Mehta and Another v. Union of India and
Others2, M.P.Electricity Board v. Shail Kumari and
(2015) SCC Online HP 731
(1987) 1 SCC 395
Others3 and Smt.Bhagyabai and Others v. Principal
Secretary, Department of Energy and Others.4
(ii) It is specifically contended that the question of
negligence as regards children cannot be raised as a
defence. While placing reliance on Naval Kumar (supra)
it is contended that concept of contributory negligence
cannot be made applicable to a child.
(iii) As regards quantification of compensation, it is
contended that the recommendation of the Karnataka State
Commission for Protection of Child Rights ('KSCPCR' for
brevity) whereby a compensation amount of Rs.50 Lakhs
was recommended ought to have been accepted. Though
the High Court had declared that recommendation of the
State Commission was only recommendatory and pursuant
to such recommendation, the Government had taken a
decision and awarded a sum of Rs.2,50,000/-,
subsequently, the Apex Court in the case of National
Commission for Protection of Child Rights and Others
(2002) 2 SCC 162
W.A.No.3249/2010 & 3540-43/2010 DD: 25.10.2010
v. Dr. Rajesh Kumar and Others5 has held that the Court
would normally expect that the Government would accept
the recommendations of the State Commission.
(iv) Petitioner has filed a memo calculating
compensation and while relying on the calculation of
compensation in Naval Kumar (supra), compensation in
terms of medical expenses, loss of future income and under
other heads like loss of companionship, loss of amenities
and compensation on the ground of pain and sufferings has
been quantified in terms of the memo dated 07.02.2022.
Further, as per memo dated 21.03.2022, estimated
expenditure for further treatment has been placed on
record.
b) Contentions of Respondent No.2
(i) The respondent no.2 has contended that there
was no negligence by BESCOM as the distance between the
electric line and building was 1.2 meters as was prescribed.
It is further contended that the order in W.P.No.48907/2018
(2020) 11 SCC 377
clarified that the order of the State Commission was to be
treated as a recommendatory and State Government was
required to pass an order, which order has been passed
holding that there was no negligence on the part of
BESCOM.
(ii) It was further submitted that the State
Government had however directed BESCOM to pay a sum of
Rs.2,50,000/- as solatium towards rehabilitation and for
providing prosthetic forearm to her left hand and steps have
been taken in terms of Annexure- R8 of the statement of
objections to pay the said amount. Accordingly, any further
claim of enhanced amount was a matter for consideration
before the Civil Court.
4.2. W.P.No.6087/2019
(a) Contentions of Petitioner
(i) The petitioner has contended that the authorities
have violated Rule 80 of Indian Electricity Rules, 1956
insofar as the distance of the high voltage line from the
building. It is further submitted that the respondents were
aware of such violation and had issued notice to the owner.
But upon taking an undertaking from the owner that it
would be the liability of the owner of the house in case of an
electrical accident, it had proceeded to provide for power
supply. Accordingly, it is submitted that the respondent
no.2 is to be fastened with liability.
(ii) It is also submitted that the KSCPCR had also
passed an order directing the respondent to pay
compensation which had also recorded a finding that the
respondent was guilty of dereliction of duty for not taking
proper action against the persons who put up the structure
and had failed to maintain distance from the high tension
wires.
(iii) Petitioner has also filed a memo calculating
compensation vide memo dated 07.02.2020. Further, as per
memo dated 21.03.2022, estimated expenditure for further
treatment has been placed on record.
b) Contentions of Respondent No.2 (Power
Transmission Corporation)
(i) It is the contention of respondent No.2 that the
petition is not maintainable in light of the disputed facts and
ought to have been filed before the trial court.
(ii) It is further contended that there has been
violation in adherence to Rule 80 and 82 of the Indian
Electricity Rules, 1956 insofar as putting up of structure
within the buffer distance to be maintained from high
voltage lines.
(iii) It is also contended that the petitioner was of a
height of 3.5 Feet and the 66 KV Power Transmission Line
was at a height of 9 feet and the only manner by which the
child would have come in contact with the line was by way
of additional contraption which act has caused the accident
and liability for which cannot be attributed to the
respondent.
(iv) It is contended that exception to Strict Liability
would apply as the accident was as a result of negligence of
the owner and compensation is required to be apportioned
by fastening liability on the building owner also.
(v) The petitioner having obtained compensation of
Rs.1,00,000/- from the Karnataka Wakf Board and
Rs.50,000/- from BBMP cannot pursue the present remedy
and must be relegated to the Civil Court.
(vi) It is also submitted that pursuant to the order of
the KSCPCR, matter was referred to the Government for
necessary decision (order dated 30.08.2019 in
W.P.No.26329/2018) on the recommendation of the
Commission and the Government has ordered payment of
Rs.5,00,000/- towards rehabilitation and treatment of
the child, which is also a ground for relegation of the
petitioner for the claim of further compensation before the
Civil Court.
4.3. W.P.No.1383/2020
a) Contentions of Petitioner:
(i) The petitioner had contended that respondent
no.1 - KPTCL was to be held responsible in light of the
report of the Electrical Inspector who has observed that
there has been lapse on part of KPTCL in maintenance of
'power braker' attached to the 11 KV Feeder Line, which did
not trip, cutting off the power supply. It is submitted that
the Electrical Inspector had concluded that there was
violation of Regulation 45 (2) (ii).
(ii) It is further contended that respondent no.2
which is a Distribution Company was also to be held liable.
It is contended that in terms of the 'Electrical Accidents - A
Consumer Guide to Claim Solatium', whenever the accident
takes place, the consumer/victim or relatives upon
informing the authorities as per the procedure to be
followed, compensation is to be paid based on the
documents, reports submitted and investigation conducted
by the Chief Electrical Inspector, Government of Karnataka
('CEIG' for brevity) within two months of the report of the
CEIG. It is also contended that wherever overhead electrical
lines are the cause of the accidents/fatality, compensation
shall be paid without waiting for the report of the CEIG.
It is submitted that the said procedure has not been
followed in granting the compensation fixed in terms of the
Government Order No.KPTCL/B7/2476/95-96/Vol-I/
Bengaluru dated 09.07.2017.
(iii) As regards the quantum of compensation, claim
of Rs.68,74,000/- has been made and calculated as per the
pleadings found in Para 23 and 24 of the petition by
applying principles as followed in determining compensation
in claim petitions under the Motor Vehicles Act.
b. Contentions of Respondent No.2 (Electricity
Supply/ Distribution Corporation)
(i) The respondent no.2 has contended that there
was no leakage of power in the line and that the
connections were intact and accordingly, there was no fault
on the part of the Corporation.
(ii) It is further contended that there are disputed
facts and matter is to be subjected to trial before the Civil
Court, that the incident occurred due to the fault of the
owner of the land who had provided an aluminum ladder
and accordingly, accident was due to negligence on the part
of the owner and is to be construed as due to 'act of third
party'.
c) Contentions of Respondent No.1 (Power
Transmission Corporation)
(i) Maintenance of 11 KV Feeder Line does not come
within the purview of KPTCL and fall within the control and
supervision of the second respondent.
(ii) The conclusion arrived at by the Electrical
Inspector has been disputed and reliance is placed on report
of the Assistant Executive Engineer (Annexure-R2) which
certifies that the 'Backup Relays' were in goods condition.
V Analysis:
A Nature of Liability of Transmission Utility and
Distribution Company:
5. In the present factual matrix, it must be noted
that the transmission of electricity is by KPTCL and the
distribution of electricity is by the CESCOM.
6. The nature of liability is as follows:
a) Liability under Common Law
(i) The Power Supply Company in these matters
have sought to repudiate liability on the ground that the
acts of negligence by the victims was the cause or
contribution for the accident or that the intervening acts by
strangers/third parties were responsible for the accident.
(ii) The principle of strict liability was evolved in the
case of Rylands v. Fletcher6, which provides that when a
person who for his own purpose brings on to his land and
collects and keeps there anything likely to do mischief and if
it escapes he keeps it is at his peril and he is prima-facie
(1868) 3 HL 330:: (1861-73) All ER Rep 1
liable for the damage caused to the natural consequence of
its escape. Though this principle admits of exception which
includes act of strangers, the courts have negatived the
applicability of defence of strict liability in case of
consequences of accidents attributed to supply and
distribution of electricity.
It is a settled position that electricity has been treated
to be a hazardous substance for the purpose of applicability
of the rule in Rylands v. Fletcher (supra).
(iii) The Apex Court in the case of M.C.Mehta
(supra) where claims for compensation were sought on
behalf of persons who had suffered consequent to escape of
oleum gas from the units of Sriram Foods & Fertilizers
Industries has laid down the law as regards consequences
of accidents where inherently dangerous activities are
carried on. The principle of absolute liability was laid down
whereby liability was made absolute i.e., strict liability sans
defences. The observations of the Apex Court at Para 31 is
self-explanatory and reads as follows:
"....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."
This principle propounded by the Apex Court in
M.C.Mehta has been extended to be applicable in the case
of electrical accidents also in the case of Shail Kumari
(supra).
(iv) In Shail Kumari, a workman in a factory, while
riding on a bicycle returning from his factory rode over a
live electric wire and was electrocuted instantaneously and
while considering the defence of the Power Companies, the
Apex Court has observed at Para 7 and 8 as follows:
"7. 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 lookout 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
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."
Further, the Apex Court while approving the law laid
down in M.C.Mehta (supra), wherein the principle of
absolute liability was laid down, at Para 13 has concluded as
follows:
"13. In the present case, the Board made an
endeavour to rely on the exception to the rule of
strict liability (Rylands v. Fletcher [(1868) 3 HL
330 : (1861-73) All ER Rep 1] ) 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 ...."
The Apex Court has specifically declined to entertain
the defence of 'Act of God' and 'Acts of Strangers' while
referring to other judgments as per the observations made
in Para 14 which reads as follows:
"14. The Privy Council has observed in Quebec
Rly., Light, Heat and Power Co.
Ltd. v. Vandry [1920 AC 662 : 89 LJPC 99 : 123
LT 1] 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 respondents 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."
(v) In another judgment of the Apex Court in the
case of H.S.E.B and Others v. Ram Nath and Others7
the same principle was extended where liability was sought
to be disowned by the Power Supply Company by
contending that the unauthorised structure near the electric
line had contributed to the accident, the Apex Court
overruled such objection in the following words:
"6. The appellants are carrying on a business
which is inherently dangerous. If a person were
to come into contact with a high-tension wire,
he is bound to receive serious injury and/or die.
As they are carrying on a business which is
inherently dangerous, the appellants would
have to ensure that no injury results from their
activities. If they find that unauthorised
constructions have been put up close to their
wires it is their duty to ensure that that
(2004) 5 SCC 793
construction is got demolished by moving the
appropriate authorities and if necessary, by
moving a court of law. Otherwise, they would
take the consequences of their inaction. If there
are complaints that these wires are drooping
and almost touching houses, they have to
ensure that the required distance is kept
between the houses and the wires, even though
the houses be unauthorised. In this case we do
not find any disputed question of fact."
(vi) The same legal position has been reiterated by a
Co-ordinate Bench at Dharwad in the case of The
Managing Director, HESCOM and others v. Shri
Nagappa Manneppa Naik and Others8 at Paras 32 to 34.
(vii) All doubts regarding imposition of strict liability
without defences on the power companies which are in fact
statutory corporations have been removed by virtue of the
clarification regarding the applicability of strict liability
principles by the Apex Court in the case of Union of India
v. Prabhakaran Vijaya Kumar and Others9 in the
following words-
W.P.No.101244/2016 & Conn. Matters DD: 03.09.2021
(2008) 9 SCC 527
"39. The decision in M.C. Mehta case [(1987) 1
SCC 395 : 1987 SCC (L&S) 37 : AIR 1987 SC
1086] related to a concern working for private
profit. However, in our opinion the same
principle will also apply to statutory authorities
(like the Railways), public corporations or local
bodies which may be social utility undertakings
not working for private profit.
40. It is true that attempts to apply the principle
of Rylands v. Fletcher against public bodies have
not on the whole succeeded vide Administrative
Law by P.P. Craig, 2nd Edn., p. 446, mainly
because of the idea that a body which acts not
for its own profit but for the benefit of the
community should not be liable. However, in our
opinion, this idea is based on a misconception.
Strict liability has no element of moral censure.
It is because such public bodies benefit the
community that it is unfair to leave the result of
a non-negligent accident to lie fortuitously on a
particular individual rather than to spread it
among the community generally.
47. However, apart from the principle of strict
liability in Section 124-A of the Railways Act and
other statutes, we can and should develop the
law of strict liability dehors statutory provisions
in view of the Constitution Bench decision of this
Court in M.C. Mehta case [(1987) 1 SCC 395 :
1987 SCC (L&S) 37 : AIR 1987 SC 1086] . In our
opinion, we have to develop new principles for
fixing liability in cases like the present one.
49. There are dicta both ancient and modern that
the known categories of tort are not closed, and
that novelty of a claim is not an absolute
defence. Thus, in Jay Laxmi Salt Works (P) Ltd.
v. State of Gujarat [(1994) 4 SCC 1 : JT (1994)
3 SC 492] the Supreme Court observed : (SCC p.
10, para 8)
"8. ... law of torts being a developing
law its frontiers are incapable of being
strictly barricaded."
50. In Ashby v. White [(1703) 2 Ld Raym 938 :
92 ER 126] it was observed (vide Pratt, C.J.):
"Torts are infinitely various, not limited or
confined."
51. In Donoghue v. Stevenson [1932 AC 562 :
1932 All ER Rep 1 (HL)] , it was observed by the
House of Lords (per Macmillan, L.J.) : (All ER p.
30 A)
"... the conception of legal
responsibility may develop in
adaptation to altering social conditions
and standards. The criterion of
judgment must adjust and adapt itself
to the changing circumstances of life."
The above view was followed in Rookes v.
Barnard [1964 AC 1129 : (1964) 2 WLR 269 :
(1964) 1 All ER 367 (HL)] and Home Office v.
Dorset Yacht Co. Ltd. [1970 AC 1004 : (1970) 2
WLR 1140 : (1970) 2 All ER 294 (HL)]
52. In view of the above, we are of the opinion
that the submission of learned counsel for the
appellant that there was no fault on the part of
the Railways, or that there was contributory
negligence, is based on a total misconception
and hence has to be rejected."
(viii) Accordingly, in light of the principle ubi jus ibi
remedium the remedy will have to be worked out in light of
the consequences of injury to the person arising out of
changing nature of the activities of the State.
(ix) The trend of the state instrumentalities in
attempting to unsettle the settled questions after having
suffered orders and having accepted the same, requires to
be frowned upon. The question of liability under common
law was explained and applied in a detailed order of the
Co-ordinate bench at Dharwad in Shri Nagappa
Manneppa Naik (supra) at para 32 to 34 which is
extracted as follows:
"C) Nature of liability of Power Supply
Company
32. The Power Supply Companies have sought
to repudiate liability on the ground that the
claimant by his/her acts of negligence was
responsible for the accident and hence the
company was not liable, that there were
intervening acts by strangers/third parties which
were responsible for the accident. All such
contentions raised are no longer available for
being canvassed in light of the law laid down by
the Apex Court in the case of Madhya Pradesh
Electricity Board (supra). The facts of the
case was that the deceased who was riding a
bicycle rode over a live wire, lying on the road
which was inundated with water and the victim
died of electrocution. The defence taken was that
one Hari Gaikwad had taken a wire from the
main supply line to pilfer power and the line got
unfastened from the hook and it fell over the
road which caused the accident. While the court
reiterated the applicability of strict liability but
explicitly ruled the inapplicability of the defences
available to 'strict liability' including that of an
"an act of stranger".
33. The Court while approving the law laid
down in the case of M.C.Mehta v. Union of
India reported in 1987 1 SCR 819 has in effect
declared that there would be absolute liability
i.e., strict liability as per the rule of Rylands
and Fetcher without any of the exceptions.
34. This position of law has been reiterated by
the Division Bench of this court in the case of
Bhagyabai v. Principal Secretary,
Department of Energy and Others in
W.A.No.3249/2010 and W.A.No.3540-43/2010
dated 25.10.2010. Accordingly, the contention of
the Power Supply Companies regarding absence
of liability while raising defences is liable to be
rejected."
x. Despite having accepted such order and not
having challenged the same, the petitioner before the
Dharwad bench in Shri Nagappa Manneppa Naik (supra)
being KPTCL and Electricity Distribution Companies and the
same entities are before this court as respondents, the
statement of objection however filed seeking to unsettle the
very legal position that is binding upon them, reflects upon
a tendency that would only contribute to increased
pendency of litigation and it is time that the State entities
ought to keep in mind the larger picture and having suffered
orders which have attained finality, ought not to seek for
re-opening the same before other benches which in effect
amounts to forum shopping.
b) Liability under Statutory Framework imposing
duty to ensure safety during transmission and
distribution:
(i) Having discussed the liability of the Power
Transmission and Distribution Companies under the
Common Law, what also requires to be noticed is the duty
to ensure safety as imposed by statutes upon the
Companies.
(ii) The following provisions under the Electricity Act,
2003 throw light on such duty:
• Section 53 (Provisions relating to
safety and electricity supply):
The Authority may,in consultation with the State
Government, specify suitable measures for -
(a) protecting the public (including the persons
engaged in the generation, transmission or
distribution or trading) from dangers arising from
the generation, transmission or distribution or
trading of electricity, or use of electricity supplied
or installation, maintenance or use of any electric
line or electrical plant;
(b) eliminating or reducing the risks of personal
injury to any person, or damage to property of
any person or interference with use of such
property;
(c) prohibiting the supply or transmission of
electricity except by means of a system which
conforms to the specification as may be
specified;
(d) giving notice in the specified form to the
Appropriate Commission and the Electrical
Inspector, of accidents and failures of supplies or
transmissions of electricity;
(e) xxx
(f) xxx
(g) specifying action to be taken in relation to
any electric line or electrical plant, or any
electrical appliance under the control of a
consumer for the purpose of eliminating or
reducing the risk of personal injury or damage to
property or interference with its use.
• Section 68. Overhead lines
(1) An overhead line shall, with prior approval of
the Appropriate Government, be installed or kept
installed above ground in accordance
with the provisions of sub-section (2).
(2) The provisions contained in sub-section (1)
shall not apply-
(a) in relation to an electric line which
has a nominal voltage not exceeding 11
kilovolts and is used or intended to be used
for supplying to a single consumer;
(b) in relation to so much of an electric
line as is or will be within premises in the
occupation or control of the person
responsible for its installation; or
(c) in such other cases, as may be
prescribed.
(3 ) xxx
(4) xxx
(5) Where any tree standing or lying near an
overhead line or where any structure or other
object which has been placed or has fallen near
an overhead line subsequent to the placing of
such line, interrupts or interferes with, or is likely
to interrupt or interfere with, the conveyance or
transmission of electricity or the accessibility of
any works, an Executive Magistrate or authority
specified by the Appropriate Government may,
on the application of the licensee, cause the tree,
structure or object to be removed or otherwise
dealt with as he or it thinks fit.
(6) When disposing of an application under sub-
section (5), an Executive Magistrate or authority
specified under that subsection shall, in the case
of any tree in existence before the placing of the
overhead line, award to the person interested in
the tree such compensation as he thinks
reasonable, and such person may recover the
same from the licensee.
Explanation. - For the purposes of this section,
the expression "tree" shall be deemed to include
any shrub, hedge, jungle growth or other plant.
• Section 161.Notice of accidents and
injuries:
(1) If any accident occurs in connection with the
generation, transmission, distribution, supply or
use of electricity in or in connection with, any
part of the electric lines or electrical plant of any
person and the accident results or is likely to
have resulted in loss of human or animal life or
in any injury to a human being or an animal,
such person shall give notice of the occurrence
and of any such loss or injury actually caused by
the accident, in such form and within such time
as may be prescribed, to the Electrical Inspector
or such other person as aforesaid and to such
other authorities as the Appropriate Government
may by general or special order, direct.
(2) The Appropriate Government may, if it thinks
fit, require any Electrical Inspector, or any other
person appointed by it in this behalf, to inquire
and report -
(a) as to the cause of any accident affecting
the safety of the public, which may have
been occasioned by or in connection with,
the generation, transmission, distribution,
supply or use of electricity, or
(b) as to the manner in, and extent to, which
the provisions of this Act or rules and
regulations made thereunder or of any
licence, so far as those provisions affect the
safety of any person, have been complied
with.
(3) Every Electrical Inspector or other person
holding an inquiry under subsection (2) shall
have all the powers of a civil court under the
Code of Civil Procedure, 1908 for the purpose of
enforcing the attendance of witnesses and
compelling the production of documents and
material objects, and every person required by
an Electrical Inspector be legally bound to do so
within the meaning of section 176 of the Indian
Penal Code, (45 of 1860)."
(iii) Provision under Indian Electricity Rules, 1956 are
as follows:
• Rule 30 - Service lines and apparatus on
consumer's premises-
(1) The supplier shall ensure that all electric
supply lines, wires, fittings and apparatus
belonging to him or under his control, which are
on a consumer's premises, are in a safe condition
and in all respects fit for supplying energy and
the supplier shall take due precautions to avoid
danger arising on such premises from such
supply lines, wires, fittings and apparatus.
(2) Service-lines placed by the supplier on the
premises of a consumer which are underground
or which are accessible shall be so insulated and
protected by the supplier as to be secured under
all ordinary conditions against electrical,
mechanical, chemical or other injury to the
insulation.
(3) The consumer shall, as far as circumstances
permit, take precautions for the safe custody of
the equipment on his premises belonging to the
supplier.
(4) The consumer shall also ensure that the
installation under his control is maintained in a
safe condition."
iv) Provisions of Central Electricity Authority
(Measures relating to Safety and Electric Supply)
Regulations, 2010 are as follows:
• Section 12. General safety
requirements, pertaining to
construction, installation, protection,
operation and maintenance of electric
supply lines apparatus:-
(1) All electric supply lines and apparatus
shall be of sufficient rating for power, insulation
and estimated fault current and of sufficient
mechanical strength, for the duty cycle which
they may be required to perform under the
environmental conditions of installation, and
shall be constructed, installed, protected, worked
and maintained in such a manner as to ensure
safety of human beings, animals and property.
(2) xxx
(3) xxx
• Section 13. Service lines and apparatus
on consumer's premises: -
(1) The supplier shall ensure that all electric
supply lines, wires, fittings and apparatus
belonging to him or under his control, which are
on a consumer's premises, are in a safe-
condition and in all respects fit for supplying
electricity and the supplier shall take precautions
to avoid danger arising on such premises from
such supply' lines, wires, fittings and apparatus.
(2) Service lines placed by the supplier on the
premises of a consumer which are underground
or which are accessible shall be so insulated and
protected by the supplier as to be secured under
all ordinary conditions against electrical,
mechanical, chemical or other injury to the
insulation.
(3) The consumer shall, as far as
circumstances permit, take precautions for the
safe custody of the equipment on his premises
belonging to the supplier.
(4) The consumer shall also ensure that the
installation under his control is, maintained in a
safe condition.
• Section 35. Supply and use of electricity:-
(1) xxx
(2) The following controls of requisite capacity
to carry and break the current shall be placed as
near as possible after the point of
commencement of supply so as to be readily
accessible and capable of being easily operated
to completely isolate the supply to the
installation, such equipment being in addition to
any equipment installed for controlling individual
circuits or apparatus, namely: -
(i) a linked switch with fuse or a circuit breaker
by consumers of voltage which does not
exceed 650 V; .
(ii) a linked switch with fuse or a circuit breaker
by a consumer of voltage exceeding 650V
but not exceeding 33 KV having aggregate
installed transformer or apparatus capacity
up to 1000KVA to be supplied at voltage up
to 11 KV and 2500KVA at higher voltages
(above 11 KV and not exceeding 33 KV);
(iii) a circuit breaker by consumers at voltage
exceeding 650 V but not exceeding 33 KV
having an aggregate installed transformer
and apparatus capacity above 1000KVA and
supplied at voltage up to 11 KV and above
2500 KVA at higher voltages (above 11 KV
and not exceeding 33 KV);
(iv) a circuit breaker by a consumer of voltage
exceeding 33 KV.
Provided that where the point of
commencement of supply and the consumer
apparatus are near each other, one linked switch
with fuse or circuit breaker near the point of
commencement of supply shall be considered
sufficient.
(3) xxx
(4) xxx
(5) xxx
(6) All insulating materials shall be chosen with
special regard to the circumstances of their
proposed use and their mechanical strength shall
be sufficient for their purpose and so far as is
practicable of such a character or so protected as
to maintain adequately their insulating property
under all working conditions in respect of
temperature and moisture; and
(7) Adequate precautions shall be taken to
ensure that no live parts are so exposed as to
cause danger.
(8) xxx
v) Accordingly, it is to be noticed that it is the duty
of the Transmission Utility and Distribution Company to
ensure safety of the equipment used for transmission and
supply which extends to ensuring the safety of the
equipments in the consumer's premises. This duty to
ensure safety is irrespective of the duties imposed on the
consumers and accordingly, in the event of any accident,
liability as discussed above emanating from Common Law is
reinforced by the duty imposed under the existing statutory
framework resulting in the Power Companies being made
liable for consequences of an electric accident.
vi) It is made clear that even in the absence of
liability imposed through the statutory framework, the
companies cannot wish away liability under the Common
Law.
B. Maintainability of Writ Petition:
7. There are instances also where the State Entities
commit torts giving rise to claims for compensation which is
sought to be asserted by way of a Writ Petition. Liability for
torts committed by the agents of the State being an
accepted principle, question whether a litigant is to be
driven to avail of the remedy before the Civil Court is not a
necessity. Once the liability of the State Entity is established
as in the present case in light of discussion, by virtue of
principle of absolute liability the quantification is also an
aspect that has been made by the courts even in exercise of
writ jurisdiction by resort to settled principles to monetarily
quantify loss of life or injury to a person as is applied in
motor vehicle accidents which is the methodology adopted
by the Division Bench of this court in Baghyabhai
(supra). The Co-ordinate Bench of this court has also
adopted similar principles to calculate compensation and
grant relief in case of death or injury due to electrocution in
Shri Nagappa Manneppa Naik and Others (supra).
8. Accordingly, even in case of concurrent remedies
being available for claim of compensation by tortious acts
committed by State Entities, the invocation of writ
jurisdiction cannot be objected to as the tort-feasor being
State under Article 12 of Constitution of India, remedy
against such tort-feasor is open to be asserted by invoking
such jurisdiction.
9. In the present case it must be noticed that there
is absolute liability as regards the activity of the corporation
as accordingly under common law liability, State being
liable, remedy to enforce compensation as a result of
consequences following from such tortious acts is being
asserted by the petitioners. That apart claim of
compensation would also be construed to be consequences
of breach of statutory obligation.
10. In an action for compensation arising out of
wrongs by the State and if on available facts there is clarity
regarding liability and quantification though partial, then to
such extent, there is no reason for denial of remedy to
claim compensation in writ proceedings.
11. In the present case, taking note that the
petitioner in W.P.No.6087/2019 is a child of a contract
worker, who suffered severe burn injuries and petitioner in
W.P.No.53302/2018 is a child of an auto rickshaw driver,
whose hand has been amputated requiring continuous
medical treatment including plastic surgery, the delay in
grant of compensation would have the effect of curtailing
treatment and threatening life and existence with dignity as
a normal human being which would amount to infringement
of Article 21 of the Constitution of India, thereby
necessitating permitting invocation of writ remedy.
Insofar as W.P.No.1383/2020, the petitioner being
wife of an deceased agricultural labourer, relegation to the
Civil Court may not be desired course of action when
otherwise facts are sufficient to grant compensation on
demonstrable legal liability.
12. The respondents have relied on various
judgments essentially contending that remedy for
compensation relating to electrical accident ought to be
decided by the Civil Court in light of disputed questions of
facts.
13. It must be noted that in all of the judgments
relied on by the respondents, the judgment of the
Constitution Bench of the Apex Court in M.C.Mehta
(supra) wherein, damages was awarded in writ jurisdiction
on the principle of absolute liability has not been referred
to.
In fact, the Apex Court in Shail Kumari (supra) has
granted compensation while endorsing and following the
principle laid down in M.C.Mehta (supra).
14. Insofar as reliance by the respondents on the
judgment of Chairman, GRID Corporation of Orissa Ltd.
(GRIDCO) and Others v. Smt.Sukamani Das &
Another10, it must be noted that the Apex Court in H.S.E.B
(supra) has referred to the judgment of the Apex Court in
Sukamani Das and while noticing that there were disputed
questions of facts in Sukamani Das and while referring to
the facts in the particular case as there was no such
dispute, has granted compensation.
(1999) 7 SCC 298
15. It must be noted that in Sukamani Das there is
no reference to the decision of the Constitution Bench in the
case of M.C.Mehta. In fact, subsequent to the judgment in
Sukamani Das in 1999, the Apex Court in Shail Kumari
(2002) (supra) has affirmed the principle of law laid down
in M.C.Mehta (supra). Further, in H.S.E.B.(2004) (supra)
the Apex Court has once again upheld grant of
compensation in exercise of writ jurisdiction while
distinguishing Sukamani Das (supra).
16. The only later judgment of the Apex Court relied
on by the respondents is S.D.O. Grid Corporation of
Orissa Ltd. and Others v. Timudu Oram11 wherein the
Apex Court had declined to entertain claim for
compensation while holding that there were disputed
questions of facts. However, a close scrutiny to the
relevant facts of the said case would reveal that the original
suit filed claiming compensation relating to the death
caused due to the electrical accident had come to be
dismissed and only subsequently, without challenging the
(2005) 6 SCC 156
dismissal of such suit, writ came to be filed before the High
Court claiming compensation on the same cause of action.
17. In fact, the Division Bench of this court in
Bhagyabai (supra) has reiterated the legal position
emanating from Shail Kumari (supra) while distinguishing
and holding as non-applicable the judgment of the Apex
Court in S.D.O. Grid Corporation (supra). The said
judgment of the Division Bench granting compensation as
regards death due to electrocution has attained finality by
virtue of dismissal of Special Leave Petition in BESCOM and
Others v. Bhagyabai and Others12. Observations at Para
10 of the order of the Division Bench of the High Court in
Bhagyabai (supra) points out to the distinction in the
following words:
"10. The facts in the said decision cannot be said
to be analogus, since, firstly the petition under
Article 226 of Constitution of India was filed
belatedly after a civil suit had already been
dismissed on the same cause of action;
secondly, the decision in the case of Shail
Kumari cited by the learned counsel for the
appellants herein, though noticed by the Hon'ble
SLP (Civil) 3295-3299/2011)
Supreme Court has not been commented upon
or disapproved in the said decision, though
subsequent, but, has only been distinguished as
not applicable to the facts which was examined
by the Hon'ble Supreme Court. In that
background, since we have already noticed that
a similar defence putforth in the case on hand
has been rejected by the Hon'ble Supreme Court
in the case of Shail Kumari wherein it was held
that the dependants of the deceased were
entitled to compensation, in the instant case
also, the appropriate compensation is to be
determined and granted."
It is also relevant to note that the court in Bhagyabai
(supra) has also calculated the compensation adopting
parameters applied under the Motor Vehicles Act.
18. Insofar as the contention that the writ petition is
not maintainable, it is to be noticed that the Petition filed
under article 226 of the Constitution of India for
enforcement of Public Law Remedy is de-hors the remedy
available to claim compensation under the Private Law
Remedy before the Civil Courts.
19. The breach of a statutory obligation resulting in
harm to a person can be sought to be addressed by way of
a Public Law Remedy through a petition under Article 226.
The compensation granted in such an action is made in the
nature of making monetary amends for such breach of
statutory duty by a State Authority.
C. Relegation to Civil Court after granting
provisional compensation :-
20. It is the contention of the respondents that the
only appropriate remedy is to relegate the parties to invoke
remedy available in the nature of claim for damages in an
action based on law of torts before the appropriate Civil
Courts.
21. It is contended that the disputed facts which may
arise in relation to the cause of the accident and also
quantification of damages as regards income earning
capacity and economic potential of a child. As an alternative
argument, it is also contended that the petitioners having
accepted compensation in terms of the decision of the
Government pursuant to recommendation of the Child
Rights Commission following the order of this Court in
W.P.No.48907/2018 and W.P.No.26329/2018. The
remaining grievance is to be redressed by the Civil Court
which are competent to enter into an adjudication of
disputed facts.
22. It is also contended that even if it is accepted that
present remedy is a Public Law Remedy and the petitioners
cannot be relegated to the Civil Court, an appropriate
manner of construing such enforcement of Public Law
Remedy would be to relegate the petitioners to the Civil
Court after payment of solatium.
23. It is also pertinent to note that the contention of
the respondents in the alternate that after grant of
compensation by way of Exgratia/Solatium under the
Government Order, as regards the claim of further
compensation matter is to be relegated to the Civil Court as
such determination of compensation would involve disputed
facts is also liable to be rejected. The Division Bench of this
Court in Bhagyabai (supra) has specifically observed at
Para 11 that guidance could be obtained from the judgment
of Sarla Verma and Others v. Delhi Transport
Corporation and Another13, wherein parameters relating
to grant of compensation has been considered. The court
then adopted the principles followed in assessment of
compensation under the Motor Vehicles Act and quantified
compensation. Accordingly, even as regards quantification
of compensation, the courts in exercise of writ jurisdiction
could adopt principles available under the Motor Vehicles
Act or the Employees Compensation Act without relegating
the parties to the Civil Court.
24. The respondents have placed reliance on
the judgment of Coordinate Bench in the case of
Sri. P.Mallappa and Others v. Bengaluru Electric
Supply Company and Others14 as well as Sri.
Hanumantappa v. The Chief Engineer, Bengaluru
Electric Supply Company Limited and Others15 in both
of which, court refers to remedy available under the Fatal
Accidents Act, 1855 while relegating the parties to the Civil
AIR 2009 SC 3104
W.P.No.54502/2015 & Connected Matters DD: 16.10.2017
W.P.No.6726/2017 DD: 20.11.2019
Court. However, it must be noted that the remedy under
the Fatal Accidents Act, 1855 falls within the sphere of
Private Law remedy while the present claims being the
remedy available in Public Law and on such ground the
judgments of the Co-ordinate Bench referred to above are
distinguishable.
25. The judgments relied upon by the respondents
contending that there are disputed questions of facts and
parties are required to be relegated to the Civil Court are all
cases where there was no report of the Electrical Inspector
under Section 161 of the Indian Electricity Act and not as in
the present cases.
26. The report under Section 161 being made in
exercise of the statutory scheme which provides for an
inquiry in the event of loss of animal or human life requires
to be given due weightage and be construed to be binding
on the respondent Corporations as long as the same is not
set aside and is to be construed to be a conclusive finding
regarding the cause of accidents.
The relevant provision under Section 161 is extracted
here below:
S.161 (2) The Appropriate Government
may, if it thinks fit, require any Electrical
Inspector, or any other person appointed by
it in this behalf, to inquire and report-
(a) as to the cause of any accident
affecting the safety of the public, which may
have been occasioned by or in connection
with, the generation, transmission, distribution,
supply or use of electricity, or
(b) as to the manner in, and extent to,
which the provisions of this Act or rules and
regulations made thereunder or of any licence,
so far as those provisions affect the safety of
any person, have been complied with.
Accordingly, the question of there being any dispute
regarding the above aspect does not arise where there are
reports of the Electrical Inspector as in the present case.
27. The further reliance on the judgment of the
Co-ordinate Bench in Mrs. Ashwini Manoj Patil and
Others v. M/s.Bangalore Electricity Supply Company
Ltd. and Others16 and Sri.Ranganath v. Managing
W.P.No.9667/2014 DD: 07.04.2016
Director, Bangalore Electricity Supply Company Ltd.17
all are judgments which do not notice the law laid down by
the Division Bench in Bhagyabai (supra) which eventually
has been approved by the Apex Court and is binding on this
court.
28. To state that once an ad hoc amount by way of
solatium is paid either under Government Order or has been
paid as per the decision of the Government following the
order of this court pursuant to the recommendation of the
Commission (as per Government Order dated 28.01.2020 -
Annexure R7 to statement of objection of respondent no.2
in W.P.No.53302/2018 and Government Order dated
09.03.2020 - Annexure R4 to statement of objection of
respondent no.2 in W.P.No.6087/2019) no further
prosecution of proceeding before the writ court requires to
be permitted and claimant must be relegated to the Civil
Courts also cannot be accepted.
W.P.No.40476/2019 & Connected Matters DD: 12.02.2020
D Right to claim Compensation irrespective of
payment of Exgratia/Solatium Amount
29. Insofar as the specific attack as regards the
validity of the Government Order bearing No.KPTCL/B7/
2476/95-96/Vol-I/Bengaluru dated, 09.07.2017 which
provides payment of compensation by the Electric Supply
Company in form of exgratia/solatium on the ground that
under it further payment is not warranted, it would be
appropriate to read down the notification and save its
operation in the manner as construed by this court in the
case of Shri Nagappa Manneppa Naik and Others
(supra) as per the observation made in Para 321 which is
extracted as follows:
"320. .. The award of exgratia compensation
cannot have the effect of extinguishing the right
to claim compensation even if the compensation
is paid under the authority of a Notification
which provides that the claimant cannot plead
negligence in any further proceeding as regards
the company, amounting to effectively give up
all claims.
321. It must be noted that the right to claim
compensation particularly in the case of death is
a constitutional right that flows from Article 21 of
the Constitution of India which, even when being
exercised seeking to enforce a statutory right
cannot be waived. The compensation given
under any notification would at the most be
treated to be exgratia compensation which
however could be set off from the eventual
compensation awarded. Accordingly, the
contention of the company as regards this aspect
is rejected."
E Apportionment of Liability :
30. Finally as regards the contention that there ought
to be apportionment of compensation amongst the joint
tort-feasors as is sought to be made out in
W.P.No.6087/2019 where it is contended that the building
owner who had put up construction in violation of Rule 80
and 82 of the Indian Electricity Rules 1952, and in
W.P.No.1383/2020 the land owner who gave the aluminum
ladder to the labourer for pepper harvesting was also
negligent and are to be made liable is also liable to be
rejected.
31. The scope of grant of compensation in an action
invoking a Public Law remedy cannot be enlarged into a
further enquiry relating to apportionment of liability
amongst the joint tort-feasors when they are private
entities. Whether acts of the owner in providing an
aluminum ladder as well as the act of constructing a
building within the prohibited distance by the owner of the
property contributing to the accident would make them joint
tort-feasors and if that were to be so, manner of
apportionment of liability is also an aspect of separate and
further enquiry which cannot be made in the writ
proceedings.
32. The Apex Court while affirming the order of the
Division Bench in Bhagyabai (supra) has reserved right to
the BESCOM, which was held liable to pay compensation to
proceed against the joint tort-feasors in separate
proceedings.
33. Insofar as the impleading application filed
seeking to include BBMP on the premise that the authority
had permitted illegal construction in contravention of
Regulations of the Authority relating to maintaining of safe
distance from the electric lines, the same requires to be
rejected. The role of the BBMP by its inaction or action in
permitting putting up of construction and thus construing it
to be a joint tort-feasor/contributory to the accident is again
a matter of separate enquiry. In fact, the Apex Court in
H.S.E.B. (supra) has specifically rejected the defence of
the Power Corporation relating to unauthorised construction
by observing that it was the duty of the Power Corporation
to ensure that unauthorised buildings are demolished and
such plea of unauthorised buildings would not defeat the
claim against the Power Corporation as observed supra at
para V A (a) (v).
F. Contributory Negligence of Child:
34. It is the contention of the respondent in
W.P.No.53302/2018, that a 13 year old victim had come in
contact with the electrical line only by virtue of the iron-
mop that was being carried and accordingly the victim had
contributed to the accident.
On similar lines in W.P.No.6087/2019, the victim who
was a child of 5years 8 month, jumped into neighbouring
house to retrieve the cricket ball and came within the
induction zone of the electrical line, hence it was also
contended that there was contributory negligence on part of
the child.
35. It is to be noted that the Apex Court in the case
of Sudhir Kumar Rana v. Surinder Singh18, has
observed at para 4 to 6 as follows:
"4. The question which arises for consideration
is as to whether the appellant can be said to be
guilty of contributory negligence. Ordinarily, the
doctrine of contributory negligence is not
applicable in case of children with the same
force as in the case of adults.
5. We do not intend to lay down a law that a
child can never be guilty of contributory
negligence but ordinarily the same is a question
of fact. (See Muthuswamy v. S.A.R. Annamalai
[1990 ACJ 974 (Mad)] .)
6. A contributory negligence may be defined as
negligence in not avoiding the consequences
arising from the negligence of some other
person, when means and opportunity are
afforded to do so. The question of contributory
(2008) 12 SCC 436
negligence would arise only when both parties
are found to be negligent."
36. As regards children, the standard of care that
could be expected of them cannot be the same standard of
care expected of adults as the thought process of children is
often governed by 'impulse', 'instinct', and 'innocence'. (see
para 11 in M.P. State Road Transport Corporation v.
Abdul Rahman19)
37. In Abdul Rahman (supra) eventually the
Division Bench of Madhya Pradesh High Court has rejected
the claim of contributory negligence on a child's part. Para
11 of the said judgment is extracted as herein below:
"11. From the aforesaid discussion relating to
contributory negligence on the part of a child of
tender age there is no doubt that the concept of
contributory negligence cannot be made
applicable to a child. A child functions according
to his own reasoning and his intelligence.
Logicality and rationality are not expected from a
child as a child of tender age has no continuous
thinking process and is governed by his impulse,
instinct and innocence. Can one ever conceive
that a child, if would have been aware of the
peril, would ever commit an act which is
AIR 1997 MP 248,
dangerous or hazardous for him? The answer has
to be a categorical 'No', because a child's action
is child-like and really innocent. Possibly for that
reason, it has been said:--
"The Maker of the Stars and Sea,
become a Child on earth for me?"
A child remains a child in spite of all training and
directions and if anything sparkles it is the glory
of his innocence which makes him indifferent to
the risks which an adult apprehends and pays
attention.
In view of our aforesaid analysis, we conclude
and hold that Riyaz, the child of four, was not
liable for contributory negligence."
The same view has been reiterated by the Division
Bench of Himachal Pradesh High Court in Naval Kumar
(supra).
38. Accordingly in both the cases, viz.,
(a) W.P.No.6087/2019 by no stretch of imagination could it
be asserted that the child ought to have exercised due care
and caution in not going near the high tension electrical line
and coming within the induction zone as the child could not
be expected to maintain the buffer distance.
(b) In W.P.No.53302/2018, the child could not be expected
not to carry any objects under the high tension electrical
line and could not be imposed with such duty of care and
caution as that expected of adults and where a child has
acted according to normal 'impulse and instincts', question
of fastening of contributory negligence on the child would
not arise.
This is only in addition to the discussion made relating
to absolute liability where the issue stands settled that none
of these defences which are sought to be relied upon to
contend contributory negligence could ever come into play.
VI Conclusion:
39. In light of above consideration, the petitions are
dealt as below:
39.1. W.P.53302/2018
(i) As regards the occurrence of accident, though FIR
is registered belatedly on 06.01.2018, the inquiry by the
Electrical Inspector concludes that the electrical accident
has happened within the Arcing Zone of the 11 KV Electric
line. The report being a statutory report in terms of Section
161, as long as same has not been set aside, it is required
to be accepted as binding by the respondent-BESCOM.
(ii) The fact that distance between the electrical line
and building was 1.2 Meters as required would by itself not
absolve the company from liability.
(iii) The other contention relating to liability under
Common Law is settled and no defence would save the
respondents from their liability. In fact, the respondent in
the statement of objections has observed that the petitioner
had touched the 11 KV line with a metal mop to collect the
veil which had accidentally fallen on the 11 KV line, which
would indicate that the accident had occurred due to the
negligence of the petitioner. Such defence cannot be
accepted and result in absolving the respondent.
(iv) The receipt of compensation in the nature of
solatium would not absolve the respondent from further
liability. The recommendation of the KSCPCR and the order
of the Government on such recommendation granting
Rs.2,50,000/- as solatium would not have the effect of
defeating the right to claim compensation.
(v) The report of Electrical Inspector would support
the conclusion that the accident has been caused when the
child came within the Arcing Zone.
39.2. W.P.No.6087/2019
(i) The accident has occurred when the petitioner
jumped on the terrace of house of Abdul Rauf and came
within the induction zone of 66 KV Distribution line resulting
in the electrical accident as recorded in the order of the
Electrical Inspector.
(ii) The Electrical Inspector has recorded a finding
that the requisite distance to be maintained between 66 KV
Electrical line and the structure of 4 meters in terms of
Regulation 61 (2) (ii) was not maintained. In fact, while
servicing the connection, an undertaking has been obtained
by the owner of the building that in the event of any
electrical accident, the owner would be liable. The report of
the Electrical Inspector also refers to the letter addressed to
the owner of the building on 26.09.2017 stating that power
supply would be cut off if the distance of 4 meter is not
maintained between the building and 66 KV Electrical line.
The accident has occurred subsequently thereto and
there is a specific finding of the Electrical Inspector that the
distance of 4 meters between the building and 66 KV
Electrical line has not been maintained.
(iii) Payment of solatium under the Government Order
of 09.03.2020 is only in the nature of Exgratia payment and
such payment cannot in any way absolve the respondent
from being held liable for compensation by invoking the
Public Law remedy.
(iv) The respondent-KPTCL has filed an application to
implead the owner of the building as well as respondent-
BBMP contending that the building was constructed in
violation of Regulation that required clearance of 4 meter
distance to be maintained between the building and the line
and the BBMP also having failed to discharge its duties was
joint tort-feasor. However, the scope of the proceedings
cannot be enlarged by bringing in private respondent viz.,
owner of the building.
(v) Further, right of the KPTCL to seek for
apportionment of liability is also a matter dealt with
separately. As referred to earlier, the Apex Court in
H.S.E.B (supra) has in similar factual matrix held that in
the event of a structure being put up close to the wires, it is
the duty of the Electric Supply Company to have it
demolished by moving the appropriate authorities or else,
they would bear the consequences of their inaction.
39.3. W.P.No.1383/2020
(i) The contention relating to existence of disputed
facts requiring the matter to be relegated to the Civil Court
does not merit acceptance. The report of the Electrical
Inspector in the context of undisputed facts is clear and is
refers to violation of Regulation 45 (2) (ii) insofar as, where
the earth fault current exceeds the limit of current for
keeping the contact potential within the reasonable value
and the earth fault or earth leakage protection must be
sufficient to disconnect the supply automatically. As such
disconnection of power supply did not ensue accordingly,
the finding of the Electrical Inspector that there was a lapse
by the KPTCL requires acceptance.
(ii) There is no dispute regarding the manner of
occurrence of accident. The report of the Electrical Inspector
stands corroborated by the version in the FIR registered on
22.02.2018, which was registered on the same day at
3.00 p.m., while the incident is stated to have occurred
during the morning hours.
(iii) Though the respondent no.1 has relied on
Annexure-'R2' which is the report of the Assistant Executive
Engineer which certifies that the 'back-up relays' was
satisfactory, there is no explanation as to why there was no
cutting off of power supply when the accident occurred if
indeed the relays were working. The report of the Electrical
Inspector is to be given due weight as such report is made
in terms of the statutory scheme under Section 161
precisely where accidents occur in generation, transmission
etc., resulting in loss of human life. It may not be open for
the KPTCL to dispute such finding of the Electrical Inspector.
Even otherwise, the report of the Electrical Inspector if not
accepted is to be appealed against before the appropriate
Appellate Authority under Section 162 (2) of the Act. Once
the report has attained finality, same cannot be called in
question in the present proceedings.
(iv) As the finding of the Electrical Inspector is that
there has been violation of Regulation 45 (2) which relates
to earth fault or earth leakage protection which relates to
the equipment within the control of respondent KPTCL, the
respondent-KPTCL is to be fastened with liability.
(v) The action of the respondent in not disbursing the
exgratia compensation in terms of the Government Order is
an arbitrary action insofar as the very object of providing
exgratia compensation stands defeated by non-
disbursement. 'Electrical Accidents - A Consumer Guide to
Claim Solatium' lists out the procedure for claiming solatium
in case of electrical accidents. The relevant extract is
reproduced below:
ELECTRICAL ACCIDENTS
A CONSUMER GUIDE TO CLAIM SOLATIUM
Protecting the interests of the electricity
customers is one of the mandates of the
Karnataka Electricity Regulatory Commission
and also of the electricity companies.
Despite several measures taken to protect
customers from the hazards of electricity,
accidents do occur leading to loss of life and
property.
Electrical accidents may arise due to
several reasons. Faulty equipments, live wires
lying on the ground or hanging at arms
length, overhead wires passing within
reachable distance of human hands etc. are
the major causes of accidents. Whatever be
the reason, the result will be injury or
death to human beings and animals.
It is true that loss of limbs or life cannot be
compensated. Yet it is the obligation of the
electricity companies to provide some relief
to the victim or his/her family members to
mitigate the hardships. Over the years the
erstwhile Karnataka Electricity Board and the
Karnataka Power Transmission Corporation
Limited have framed certain rules and
regulations with regard to payment of
compensation in case of electrical accidents.
However, consumers in general are not
aware of these procedures, partly because these
documents are inaccessible. Besides, the
various procedural formalities are not available
at a single source.
The Office of Consumer Advocacy of KERC
has taken the initiative of providing consumers
with necessary information on matters relating
to the procedures to be followed and the
documents to be submitted in case of
claiming compensation in the following
paragraphs.
STEP 1
As soon as the accident takes place,
the consumer/victim or his/her relatives
should inform, in writing on a plain paper, to the
respective Section Officer of the respective
Electricity Supply Company Limited. In
addition, copies of the report should be
submitted to the following officials:
Sub-Divisional Officer of the concerned Electricity
Supply Company Ltd.
Managing Directors of the concerned
Electricity Supply Companies The address of
ESCOMS is given at the end of this Manual.
Chief Electrical Inspector, Government of
Karnataka, Mysugar Buildings,
Jayachamarajendra Road, Bangalore - 560 002.
The accident should be reported within 24
hours from the time of occurrence of the
accident.
STEP 2
In case of death of the victim, the following
documents are to be collected by the kith and
kin/relatives to claim compensation
•Death Certificate (in original)
•Postmortem Report
•First Information Report (FIR) and
Mahajar Report from the Police
•Witness statement
•Report from the Chief Electrical
Inspector, Govt.of Karnataka
•Legal heir certificate for payment of
compensation
•Detailed report of the accident by the
section officer duly counter signed by
the respective Sub Division officer.
Based on the documents, reports
submitted and the investigations conducted
by the CEIG, the concerned electricity supply
company will pay the compensation within
TWO MONTHS from the date of receipt of
the Report from the Chief Electrical Inspector,
Government of Karnataka.
Wherever overhead lines are the cause
of the accident/fatality, the electricity supply
company shall pay the compensation without
waiting for the report of the CEIG.
In case of non-reply from the electricity
supply company even after THREE MONTHS
from the date of submitting all the required
documents/information, a copy of the claim
for compensation along with the above
documents may be forwarded to KERC.
The details about amount of compensation
can be obtained from the jurisdictional Sub
Divisional office of the Corporate Office of the
electricity supply companies.
(vi) Accordingly, wherever accidents are caused due
to overhead lines there is an obligation to disburse exgratia
compensation without waiting for report of CEIG.
Even otherwise once the report under section 161 is
submitted to the Supply and Distribution Company,
compensation is to be disbursed forthwith.
VII Quantum of Compensation:
40. The compensation could be quantified in terms of
settled principles as applied in Motor Vehicles Accidents
cases. Solely on the ground that determination of
compensation would involve certain factual consideration,
that by itself will not be a ground to relegate the petitioners
to the Civil Court as recorded supra. Taking note of the
law laid down in Bhagyabai (supra) at Para 11, wherein
the court has adopted the principles as applicable under the
Motor Vehicles Act, compensation is determined in the
present case following the same principle.
41. The Apex Court in United India Insurance Co.
Ltd. v. Satinder Kaur20 has interpreted the law laid down
in Pranay Sethi (supra) in light of the judgment of the
Apex Court in Magma General Insurance Co. Ltd. v.
Nanu Ram21, wherein, consortium was interpreted to
include spousal consortium, parental consortium, as well as
filial consortium.
(2021) 11 SCC 780
(2018) 18 SCC 130
42. The Apex Court while dealing with the
compensation payable to children has enunciated principles
in Mallikarjun v. Divisional Manager, National
Insurance Co. Ltd. and Another22 and observations at
Para 7, 8 and 12 are of relevance and are extracted as
below:
"7. It is unfortunate that both the Tribunal and
the High Court have not properly appreciated the
medical evidence available in the case. The age
of the child and deformities on his body resulting
in disability, have not been duly taken note of.
As held by this Court in R.D. Hattangadi v. Pest
Control (India) (P) Ltd. [(1995) 1 SCC 551 :
1995 SCC (Cri) 250] , while assessing the non-
pecuniary damages, the damages for mental and
physical shock, pain and suffering already
suffered and that are likely to be suffered, any
future damages for the loss of amenities in life,
like difficulty in running, participation in active
sports, etc., damages on account of
inconvenience, hardship, discomfort,
disappointment, frustration, etc. have to be
addressed especially in the case of a child victim.
For a child, the best part of his life is yet to
come.
8. While considering the claim by a victim child,
it would be unfair and improper to follow the
structured formula as per the Second Schedule
to the Motor Vehicles Act for reasons more than
one. The main stress in the formula is on
pecuniary damages. For children there is no
(2014) 14 SCC 396
income. The only indication in the Second
Schedule for non-earning persons is to take the
notional income as Rs 15,000 per year. A child
cannot be equated to such a non-earning
person. Therefore, the compensation is to be
worked out under the non-pecuniary heads in
addition to the actual amounts incurred for
treatment done and/or to be done,
transportation, assistance of attendant, etc. The
main elements of damage in the case of child
victims are the pain, shock, frustration,
deprivation of ordinary pleasures and enjoyment
associated with healthy and mobile limbs. The
compensation awarded should enable the child
to acquire something or to develop a lifestyle
which will offset to some extent the
inconvenience or discomfort arising out of the
disability. The appropriate compensation for
disability should take care of all the non-
pecuniary damages. In other words, apart from
this head, there shall only be the claim for the
actual expenditure for treatment, attendant,
transportation, etc.
12. Though it is difficult to have an accurate
assessment of the compensation in the case of
children suffering disability on account of a
motor vehicle accident, having regard to the
relevant factors, precedents and the approach of
various High Courts, we are of the view that the
appropriate compensation on all other heads in
addition to the actual expenditure for treatment,
attendant, etc. should be, if the disability is
above 10% and up to 30% to the whole body,
Rs 3 lakhs; up to 60%, Rs 4 lakhs; up to 90%,
Rs 5 lakhs and above 90%, it should be Rs 6
lakhs. For permanent disability up to 10%, it
should be Rs 1 lakh, unless there are exceptional
circumstances to take a different yardstick."
43. Insofar as compensation as regards to children,
the Apex Court has revisited the legal aspect in the case of
Kajal v. Jagadish Chand and Others23. The Apex Court
in Para 20 has observed that each case will have to be
evaluated on the factual matrix available and has taken
note of potentiality and has awarded future prospects. The
Apex Court has also granted compensation under the head
'loss of marital prospects' and also 'attendant charges' by
noting that attendants would be required to look after the
child during hospitalisation as observed in Para 21 of the
judgment.
44. In light of the above principles the calculation
would be as under:
44.1 W.P.No.1383/2020
1. Age of the victim : 36 years
2. Occupation : Agricultural worker
3. No. of Dependents : Wife (34yr);
three unmarried daughters
12,15,17yrs); son (9yr)
(2020) 4 SCC 413
4. Monthly income : Rs.13,500/- (Claimed Income)
5. Multiplier : 15
6. Loss of dependency : 1/4
Calculation of Compensation are as follows:
(i) Towards loss of Income/salary:
The incident had occurred in the year 2018 and the
notional income in the year 2018 as per the Schedule of
Income notified by the Lok Adalath was Rs.12,500/-.
Deduction towards Personal and living expenditure shall be
1/4th of Rs.12,500 i.e., Rs.9,375/-, following the law laid
down by the Apex Court in Sarla Verma (supra), wherein
the Apex Court has held that the deduction towards
personal and living expenses of the deceased should be
one-fourth (1/4th) where the number of dependent family
members is 4 to 6. Therefore the compensation under the
head shall be calculated by using the formula [Monthly
wages after deduction x Multiplier x 12] i.e., 9,375 x 12 x
15 = 16,87,500. Therefore compensation amount of
Rs.16,87,500/- is awarded under this head.
(ii) Towards Future Prospects:
In light of law laid down in Pranay Sethi (supra)
addition of 40% shall be made towards income i.e.,
16,87,500 x 40% = 6,75,000. Therefore compensation
amount of Rs. 6,75,000/- is awarded under this head.
(iii) Loss Of Estate, Loss Of Consortium And Funeral
Expenses:
The compensation under the head shall be awarded as
follows:
Loss Of Estate : Rs.15,000/-
Funeral Expenses : Rs.15,000/-
Spousal consortium : Rs.40,000/-
Parental consortium : Rs.1,20,000/- (40,000 x 3)
Total : Rs.1,90,000/-
Sl. Heads Amount
No Rs.
1. Loss of Income including Deduction 16,87,500/-
from Personal Expenses
2. Future prospects 6,75,000/-
3. Loss of estate, Loss of consortium 1,90,000/-
and Funeral expenses
Total Rs. 25,52,500/-
44.2 W.P. No.6087/2019
1. Age of the victim : 5 years 8 months
2. Disability : 80% burn with 40% deep burn
3. Amount received : BBMP Mayor Fund - 50,000/-
Wakfs Board - 1,00,000/-
2nd Respondent- 5,00,000/-
(Annexure- D, E, R4)
Calculation of Compensation are as follows:
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, etc.:
The child was treated as inpatient for nearly one and
a half months for the following period from 16.09.2017 to
12.10.2017; 17.10.2017 to 18.10.2017; 24.10.2017 to
25.10.2017; 31.10.2017; 06.11.2017 to 09.11.2017;
14.112014; 21.11.2017; 28.11.2017. Records reveal the
following:
i. 80% burn with 40% deep burn
ii. On ventilation till 23.09.2017
iii. Frequent debridement and dressing of wounds
iv. Medicines
Following the observation made in Kajal (supra) the
amount of compensation payable for the actual medical
expenditure incurred will be Rs.4,50,000/- and
transportation charges incurred during the period of
treatment would be Rs.50,000/-. Therefore the total
compensation awarded under this head is Rs.5,00,000/-.
(ii) Loss of earning:
The child has suffered 80% burn injuries with 40%
deep injuries, the injuries suffered will affect future earning
of the child when compared to a normal child. Therefore,
the loss of earning can be determined by taking into
consideration of Notional Income in terms of law laid down
in Kajal's case. The electrical accident occurred in the year
2017 and the Notional Income for the year 2017 was
Rs.11,000. In terms of the law laid down by the Apex Court
in Sarla Verma (supra), multiplier of 18 can be adopted.
With regards to deductions to be made on dependency, it is
to be noted that from the present state of the child it is
difficult to determine marriage of the child, therefore no
deductions shall be made. Hence the compensation under
the head works out to Rs.23,76,000/- (11,000 x 18 x 12).
(iii) Attendant charges:
The child was hospatilised for almost one and a half
month, it is pertinent to note that the victim being a 6 year
old child he would require an attendant to carry out his daily
routine. Therefore compensation amount of Rs.4,00,000/- is
awarded under this head.
(iv) Pain and Suffering and Compensation for
Disfigurement:
It is pertinent to note that the child had to undergo
long term medical treatment. It is evident from Annexure-
Z and Z (1,2,3,4,5) that the child requires to undergo skin
grafting and plastic surgery. Therefore an amount of
Rs.5,00,000/- is awarded for Disfigurement.
(v) Loss of marriage prospects:
Rs.3,00,000/- is awarded under this head.
(vi) Future medical treatment :
The petitioner through memo dated 21.03.2022 has
produced an estimate of future medical treatment which
amounts to Rs.10,06,050/-, therefore an amount of
Rs.10,06,050/-, is awarded under this head.
Sl. Heads Amount
No Rs.
1. Expenses relating to treatment, 5,00,000/-
hospitalisation, medicines,
transportation, etc
2. Loss of earnings 23,76,000/-
3. Attendant charges 4,00,000/-
4. Pain, suffering, Compensation for 5,00,000/-
Disfigurement
5. Loss of marriage prospects 3,00,000/-
6. Future medical treatment 10,06,050/-
Total 50,82,050/-
Amount already received 6,50,000/-
Compensation awarded 44,32,050/-
44.3 W.P. No.53302/2018
1. Age of the victim : 13yrs (annexure-D)
2. Disability : 75% (annexure-F)
3. Amount received : Rs.2,50,000/- Annexure R8
Calculation of Compensation are as follows:
(i) Expenses relating to treatment, hospitalisation,
medicines, transportation, etc.:
In annexure D (Report of Plastic Surgery Dept, Victoria
Hospital) it is stated that the petitioner was hospatilised
from 19.10.2017 to 27.11.2017. It further stated that the
petitioner underwent elbow amputation. It is further
submitted through memo Dated 08.07.2022 that a sum
Rs.2,00,000/- was paid towards plastic surgeries. It was
prescribed that post discharge the petitioner should attend
regular dressing for two months. Therefore compensation
amount of Rs.5,00,000/- is awarded including
transportation expenses.
It is to be noted that the Apex Court in Mallikarjuna
(supra), has held that in cases of disability additional
compensation of Rs.4,00,000/- in addition to the actual
expenditure incurred for treatment has to be awarded.
Therefore the total compensation under the above head
works out to Rs.9,00,000/-.
(ii) Loss of earning:
The child has suffered permanent disability of 75%
with amputation of left hand. Therefore, the loss of earning
can be determined by taking into consideration of Notional
Income in terms of law laid down in Kajal (supra). The
electrical accident occurred in the year 2017 and the
Notional Income for the year 2017 was Rs.11,000. In terms
of the law laid down by the Apex Court in Sarla Verma
(supra), multiplier of 18 can be adopted. With regards to
deductions made on dependency, it is to be noted that from
the present state of the child it is difficult to determine
marriage of the child, therefore no deductions shall be
made. Hence the compensation Rs.23,76,000/- (11,000 x
18 x 12) is awarded under this head.
(iii) Attendant charges:
The child was hospatilised for almost one month and
her elbow was amputated therefore she would require an
attendant to carry out her daily routine throughout her life.
Hence compensation of Rs.5,00,000/- is awarded under this
head.
(iv) Pain and Suffering and Compensation for
Disfigurement:
Rs.5,00,000/- is awarded under this head.
(v) Loss of marriage prospects:
Rs.3,00,000/- is awarded under this head.
(vi) Future medical treatment :
The memo dated 21.03.2022 and 08.07.2022 provides
the estimate of future medical treatment along with the cost
of robotic arm. It is further provided that the petitioner has
to undergo two surgeries amounting to Rs.2,00,000/- and
robotic arm amounting to Rs.2,90,000/-, also to be taken
into consideration as expenses incurred on medication.
Therefore, compensation amount of Rs.6,00,000/- is
awarded under the above head.
Sl.No Heads Amount
Rs.
1. Expenses relating to treatment, 9,00,000/-
hospitalisation, medicines,
transportation, etc
2. Loss of earnings 23,76,000/-
3. Attendant charges 5,00,000/-
4. Pain, suffering, Compensation for 5,00,000/-
Disfigurement
5. Loss of marriage prospects 3,00,000/-
6. Future medical treatment 6,00,000/-
Total 51,76,000/-
Amount already received 2,50,000/-
Compensation to be Paid 49,26,000/-
45. In light of the above discussion, I pass the
following:
ORDER
(i) In W.P.No.53302/2018 the petitioner is entitled to
receive compensation amount of Rs.49,26,000/- (See Para
44.3) The respondent no.2 shall deposit compensation to
the tune of Rs.40,00,000/- in a fixed deposit in a
nationalised bank for such a period till the petitioner attains
majority. The interest payable on this amount shall be
released on quarterly basis to the father of the petitioner
towards expenses to be incurred. The remaining
compensation amount of Rs.9,26,000/- shall be released to
the father of the petitioner to meet special needs such as
medical and other expenses.
(ii) In W.P.No.6087/2019 the petitioner is entitled to
receive compensation amount of Rs.44,32,050/-, (See Para
44.2) The respondent no.2 shall deposit compensation to
the tune of Rs.29,00,000/- in a fixed deposit in a
nationalised bank for such a period till the petitioner attains
majority. The interest payable on this amount shall be
released on quarterly basis to the father of the petitioner
towards expenses to be incurred. The remaining
compensation amount of Rs.15,32,050/- shall be released
to the father of the petitioner to meet special needs such as
medical and other expenses.
iii) In W.P.No.1383/2020 the petitioner is entitled to
the sum of Rs.25,52,500/- by way of compensation (See
para 44.1). The respondent No.1 shall deposit
compensation to the tune of Rs.12,76,250/- in a fixed
deposit in a nationalised bank for a period of 05 years. The
interest payable on this amount shall be released on
quarterly basis to the petitioner-widow. The remaining
compensation amount of Rs.12,76,250/- shall be released
to the petitioner-widow to meet necessary needs.
(iv) The compensation stated above is to be paid
within three months, in default of payment of compensation
within the time prescribed, amount due would carry further
interest at 6% per annum till date of payment.
(v) The right of the respondents to proceed against
the joint tort-feasors or as against others as the case may
be on the principle of contributory negligence is preserved
to be exercised in accordance with law and such liberty
would take care of the grievance of financial prejudice as
made out by the respondents.
(vi) The application for impleading filed in
W.P.No.1383/2020 (I.A.-1/2022 seeking to implead the
owner of the land) and the application filed in
W.P.No.6087/2019 (I.A.-1/2020 seeking to implead the
owner of the building as well as BBMP) are liable to be
rejected.
vii) Before parting, after noticing the plight of
dependents in W.P.No.1383/2020, wherein the dependents
have lost their sole breadwinner on 22.02.2018 and have
not received any amount of compensation till date, even
under the Government Order dated 09.11.2017, it would be
appropriate to direct as follows:
a) Whenever the report under section 161 is
furnished to the Distribution/Supply Company,
the exgratia compensation as per Government
Order is to be paid within an outer limit of two
months.
b) This is however subject to those cases
where the accident is directly attributable to
overhead lines in terms of the Consumer Guide
to claim Solatium issued by KERC (Annexure-'G'
in W.P.No.1383/2020), compensation is to be
paid under the Government Order without
waiting for report of CEIG.
Accordingly, the petitions are disposed off.
Sd/-
JUDGE
Np/-
