S.no. 23 v. U.T. of J&K through Comm/Secy to Govt. Public Diustribution

2. Chief Engineer, PDD, Srinagar 3. Executive Engineer, PDD, Beerwah, Budgam ………Respondent(s) Through: Mr Bikramdeep Singh, Dy.Ag CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 04.12.2024

1. Petitioners pray to direct respondents to pay compensation of Rs.10.00 Lacs or any other amount as may be calculated/determined in terms of guidelines of the Supreme Court judgement in Sarla Verma’s cae for compensation in MACT claims.

2. Objections have been filed by respondents. According to respondents deceased Shabir Ahmad Malik on the fateful day of 25th June 2019 was illegally repairing/fiddling with 100 KVA Transformer at Mochan, Dachan, which was kept isolated by the staff a day before when it developed some electric snag. OWP no.3702/2019

3. Learned counsel for petitioners moved an application, being CM no.7785/2023, to place on record the final closure report no.18/21 dated 24th August 2023 in FIR no.104/2019 of Police Station Beerwah. 4. I have gone through the closure report. It reveals that on the fateful day, due to strong wind and storm, HT Power Line suddenly fell on the deceased, causing grievous injured, to which he later succumbed. In such circumstances, the reply of respondents is worth nothing.

5. Heard and considered. 6. Learned counsel for petitioner would contend that there was gross negligence on the part of respondents which resulted in electrocution of deceased Shabir Ahmad Malik and subsequent death. He has placed reliance on judgements dated 9th September 2022 passed by the Coordinate Benches of this Court in OWP no.1042/2014 Saleema Begum and others v. State of J&K and others, and dated 25th November 2022 in OWP no.1669/2014 titled as Mst. Mala Begum v. State of J&K and others.

7. The issue is no longer res integra. The Supreme Court in M. P. Electricity Board v. Shail Kumari and others (2002) 2 SCC 162, held as under: “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 look out 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 OWP no.3702/2019 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.”

8. As early as in the year 1986, the Constitution Bench of the Supreme Court in M. C. Mehta v. Union of India (1987) 1 SCC 395, has held that we need not feel inhibited by technical considerations surrounding the rule in Rylands Vs. Fletcher (1868) L.R.3 H.L. 330 and that we have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. They, therefore, held 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 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 Vs. Fletcher (supra).

9. The question is whether writ petition can be entertained for granting compensation to the petitioners is no longer res integra, in view of the legal position and law laid down in Mustaq Ahmed and others v. State of Jammu & Kashmir and others, AIR 2009 JK 29 and Joginder Singh v. State of J&K and others, AIR 2011 (1) JKJ 722. This Court, while dealing with the issue, has held in Mustaq Ahmed’s case (supra) as under: - “13. The question that, therefore, falls for consideration is as to whether even in such type of cases, where death or injury is caused because of leakage of electric energy by the State OWP no.3702/2019 engaged in supply of electric energy, which, no doubt, poses a potential threat to the safety of living beings, it not would be debarred from invoking extra ordinary civil writ jurisdiction of the Court when the electrocution had taken place because of no fault of the victim”.

10. This Court in Mustaq Ahmed’s case (supra) also discussed paragraph 26 of the judgment of the Supreme Court in the case of SDO Grid Corporation Ltd. and others v. Timudu Oram, 2005 (6) SCC 156, which is reproduced as under: - “26. After referring to all the judgments, in our considered view, the ratio of the judgment handed down by the Apex Court in SDO Grid Corporation’s case, AIR 2005 SC 3971 (supra) relied upon by Mr. Thakur and also made the basis for rejection of all the three writ petitions filed by the appellants, does not whittle down the law laid down by the Apex Court in M.P. Electricity Board’s case, AIR 2002 SC 551 as in SDO Grid Corporation’s case, AIR 2005 SC 3971 (supra), the Apex Court considered the earlier decision rendered in M.P. Electricity Board’s case and without affecting the principle of “strict liability” distinguished the said judgment on the ground that the question of negligence was determined by Civil Court. Therefore, it can be reasonably understood that M.P. Electricity Board’s case has been distinguished on its own facts and the Hon’ble Supreme Court has not taken any contrary view from the one already taken with regard to the doctrine of “strict liability” as discussed in extenso in the judgment of Constitution Bench of Supreme Court in M.C. Mehta’s case, AIR 1987 SC 1086(supra).”

11. The question is that to what extent, petitioners would be entitled to compensation on account of death of Shabir Ahmad Malik, who happened to be husband of petitioner no.1 and father of petitioners 2 to 4, more particularly when they have lost their breadwinner.

12. Payment of compensation to petitioners can be, at this stage, considered according to the Policy framed by the respondents for grant of ex gratia relief. For grant of ex gratia relief to employees of PDD, other persons or their heir and to owners of domestic animals, who are electrocuted and die or are rendered fully or partially disabled due to negligence of PDD, certain amendments have been made by the Government of Jammu & Kashmir, Finance Department, in the J&K Book of Financial Powers in Chapter 5.9 S.no.123-A(1) in terms of Government Order no.454-F of 2019 dated 24th October 2019, which reads as under:- “Government of Jammu & Kashmir OWP no.3702/2019 Civil Secretariat, Finance Department Subject: Amendment in the Jammu and Kashmir Book of Financial Powers. Reference: SAC Decision No.271/22/2019 dated 22.10.2019 Government Order No. 454 -F of 2019 Dated:- 24 . 10 . 2019 Sanction is hereby accorded to the following amendments in the Jammu and Kashmir Book of Financial Powers: - In the Book of Financial Powers in Chapter 5.9 against S.No.123- A(1), the column ‘Extent’ shall be recast as under:- S. No. Nature of power 123-A 1) To grant Ex-gratia Relief in favour of the employees of the POD, other persons or their heir and to the owners of Domestic Animals, who are electrocuted and die, or are rendered fully/partially disabled due to the negligence of the PDD, subject to the condition that: i) All the employees of the PDD, whether regular, DRW/Casual labour, Work Charged, Contingent paid etc., engaged in the generation, transmission or supply of electrical energy in the Department, who are killed, incapacitated, wholly or partially, during the course of discharging their bona fide and legitimate duties; ii) Civilians, killed or injured, resulting in their partial or total disability, subject to the explicit condition that the accident is not attributable to them, but to the lapses, attributable to the PDD, as verified by the Director, TTI &C; To whom delegated DCP Extent Full powers within the Budget Provisions with the following scales: A. Human Beings I. In case of Death: Rs.10.00 lacs II. Total Disability: Rs.7.50 lacs. III. Partial Disability:Rs.2.00 lacs In case of death of any employee, the Ex-gratia relief shall be paid to the legal heirs of the deceased. The payment shall be subject to the condition that the relief, granted by the Government under the Workman’s Compensation, shall be adjusted while making payment of the Ex-gratia relief. B. Domestic Animals i. Cow, bull, horse: Rs.20,000 OWP no.3702/2019 iii) Domestic animals killed by electrocution, caused due to lapses, attributable to the Department and verified by the Director, TTI&C ii. Sheep/Goat: Rs.5000 By order of the Government of Jammu & Kashmir. No.A/68(01)-B-944 Sd/- (Dr.A.K.Mehta), IAS, Financial Commissioner, Finance Department. Dated: 24.10.2019”

13. Since in the present case, electrocution has caused death of breadwinner of petitioners, namely, Shabir Ahmad Malik, as such, at this stage, they are held entitled to ex gratia relief of Rs.10.00 Lacs.

14. In view of the aforesaid discussion and in the facts and circumstances of the case, respondents are directed to pay the petitioners a sum of Rs.10.00 Lacs as ex gratia relief along with interest at the rate of 6% per annum from the date of filing of this petition.

15. Disposed of. Srinagar 04.12.2024 Ajaz Ahmad, Secy. Whether approved for reporting? Yes/No (Vinod Chatterji Koul) Judge OWP no.3702/2019