Judgment · High Court · 2012

This court by the aforesaid common judgment and order had disposed of t he said writ petition by directing the respondents to pay to the petitioner a su m of Rs.1,85,000/- as compensation with interest @ 6% from the date of filing of the writ petition until realisation of the entire amount. A review petition, being Review Petition No. 8/2009, was filed by the re spondents for review of the aforesaid judgment in respect of the present writ pe tition. This court in the review proceeding noticed that the judgment was render ed on the premise that the respondents had not filed counter affidavit. As a mat ter of fact, a counter affidavit was filed by the respondents on 6.5.2008. In vi ew of aforesaid development, the prayer for review was allowed by order dated 7. 4.2011. The common judgment and order dated 4.6.2008 was set aside in so far it related to WP(C) No. 8733/2004, with further direction to list the case for hear ing separately. This is how the case has again been listed for hearing. In this petition, as noticed above, the petitioner has sought for issuan ce of appropriate writ(s) commanding the respondents to pay a sum of Rs.3,00,00 0/-(three lakhs) as compensation, for the severe burn injury and fracture of rig ht patella suffered by his son, due to electrocution. The case of the petition er is that on 13.06.2004, at about 6.30 A.M. while the petitioner’s minor son M d.Idul Ali was coming on foot towards his house, a live electrical wire of 11 000 KVA, suddenly , fell on his body and as a result of electric shock, the pe titioner’s son suffered not only burn injuries on his body, but also fracture of left patella . The injured was treated at Sessa PHC and, then, shifted to Ga uhati Medical College Hospital, Guwahati for further treatment. The injured was discharged from the hospital at Guwahati on 13.08.2004, with a discharge certi ficate given to the effect that he had suffered burn injury and sustained frac ture of his left patella. At the time of discharge, the injured was advised to a ttend Departments of Plastic Surgery and Orthopaedic, in the hospital, but due t o financial stringency, the petitioner has not been able to provide adequate and necessary treatment to his said injured son. The injured had studied up to clas s VIII and he had, thereafter, opened a pan shop near Sessa Bus Stop and with hi s earnings, he used to maintain himself and his parents. This Court after an elaborate examination of the scope of power of a wri t Court in awarding compensation arising out of tortuous act of a State and its instrumentalities had awarded a total compensation of Rs. 1,85,000/- to the peti tioner with interest as indicated above. The break up of the compensation amoun t was as under :- (1) Compensation for burn injuries -- (2) Compensation for fracture -- (3) Compensation for loss of income -- Rs. 50,000/- Rs. 35,000/- Rs. 1,00,000/- As already indicated above, the Court had proceeded on the basis that t he respondents had not filed any affidavit and did not resist the writ petition , which position now stands revised in view of the fact that the respondents had infact filed their counter affidavit. In their counter affidavit, the respondents have stated that on 13.6.200 4 at about 7 AM in the morning, one pin insulator of 11 KV line of Chenga feeder suddenly burst due to heavy lightening. As a result, the conductor snapped and fell down on the road. At that moment the son of the petitioner was walking belo w that line. As the conductor fell down it came in contact with the victim and r esulted in his injuries. The respondents have stated that this was purely an act of God and neither could have been foreseen nor prevented. Therefore, the claim of compensation was denied. Paragraph 6 of the counter affidavit which projects the case of the respondents is extracted hereunder: (cid:28)6. That your humble deponent categorically denies the allegations levelled agai nst ASEB and your humble deponent states that on 13.6.04 at about 7.00 a.m. one pin insulator of 11 K.V. line of Chenga feeder suddenly burst due to heavy light ening at that instant. As a result a 11 K.V. conductor snapped and fell down on the road. At the same time Md.Dudul Ali, son of the petitioner was walking below that line. As the conductor fell, it came in contact with the petitioner’s son, resulting in his injuries. This is purely an act of God and no amount of over s eeing and maintenance could have prevented this. Thus ASEB is not at all respons ible for the said electrical accident and hence not liable to pay any compensati on what so ever to the injured. (cid:29) Though it may not be a case of callousness or improper maintenance on th e part of the respondents, yet considering the public character of the duties ca rried out by the ASEB and its successor Companies following the principle of s trict liability, the respondents cannot absolve themselves of their liability. The principle of strict liability has been discussed in the common judgment and order dated 4.6.2008. Further deliberation would only be a repetition of the le gal position, which has already been very succinctly formulated by the Court in the said judgment. Notwithstanding the above, a brief reference to M.P.Electricity Board V s. Shail Kumari and others reported in (2002) 2 SCC 162 is considered relevant . Explaining the concept of strict liability, the Apex Court in that case held as under:- (cid:28)8. Even assuming that all such measures have been adopted, a person undertakin g an activity involving hazardous or risky exposure to human life, is liable und er law of torts to compensate for the injury suffered by any other person, irres pective of any negligence or carelessness on the part of the managers of such un dertakings. 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 (cid:28)strict liability (cid:29). It differs from the liability which arises on account o f 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 i s held liable irrespective of whether he could have avoided the particular harm by taking precautions. (cid:29) Again , this Court in the case of Mosht. Amena Bewa Vs Assam State Electricity B oard & Ors. reported in 2007(3) GLT 32 held as under: (cid:28)12. Under the law, a very onerous obligation is cast on the Board in transmitti ng and supplying electrical energy. Having regard to the nature of the enterpris e undertaken, the Board has to be extra vigilant and cautious so much so that th e lives and properties of persons are not exposed to any risk or fatal consequen ces. This makes it incumbent on the Board to be meticulously watchful about the installation for supplying such energy so that any omission in maintaining the s ame would make it liable for all adverse consequences flowing therefrom followin g the principles of strict liability. (cid:29) Therefore, following the above, this Court is of the considered view tha t the respondents are liable to pay compensation to the victim, the son of the p etitioner. Having held so, the quantum of compensation would now be required to be determined. In the case of Mosht. Amena Bewa (supra), this Court has held that compensation under Article 226 of the Constitution of India is in the natu re of palliative and some guess work is inevitable though the same shoul d be reasonable . It is seen that Assam State Electricity Board (ASEB) had iss ued an office memorandum dated 22.12.2008 fixing the amount of compensation in r espect of victims (fatal) of electrical accidents who are not in employment of A SEB. As per the said office memorandum, in the case of death of a person up to t he age of 20 years, the amount of compensation has been fixed at Rs. 1,00,000/-. Considering the present financial situation prevalent in the country, the afor esaid amount of Rs.1,00,000/- is certainly on the lower side . Moreover, the sai d amount was fixed more than three years ago. In the present case, the victim was aged about 15 years at the time of a ccident. Because of electrocution, he suffered fracture of left patella and also burn injuries. Though the consequence of the electrical accident was not fatal, considering all aspects of the matter, this Court is of the view that the vic tim should be paid a lump sum compensation amount of Rs.1,00,000/-. Ordered acco rdingly. The aforesaid amount shall be deposited by the ASEB within a period of 6 weeks from today in the Registry of this Court, which shall be released to the victim on proper identification. It is however made clear that if the petitioner or the victim is not sat isfied with the aforesaid amount, it would be open for them to institute appropr iate proceeding for higher compensation in accordance with law. Writ petition is allowed. No cost.