V.R. HARISH BABU v. THE COMMISSIONER

Judgment

3. THE COMMISSIONER BENGALURU BRUHATH MAHANAGARA PALIKE ELECTRICAL DIVISION MAHADEVAPURA ZONE K R PURAM, BENGALURU-560036, REPRESENTED BY ASSISTANT EXECUTIVE ENGINEER. KARNATAKA STATE ELECTRICITY BOARD BESCOM, MAHADEVAPURA ZONE K.R. PURAM, BENGALURU-36 REPRESENTED BY ASSISTANT EXECUTIVE ENGINEER. S RAMESH REDDY S/O SANJEEV REDDY, AGED ABOUT 54 YEARS, M/S TIRUMAL ELECTRICALS CONTRACTOR - 2 - NC: 2024:KHC:25902 WP No. 13692 of 2022 WARD NO.83, KADUGODI, R/O PLOT NO.11108, 11TH TOWER, PRSTIGE SHANTINIKETAN, WHITEFILED MAIN ROAD, BENGALURU-560048. WORK INDENT NO.18093 BBMP/EE(ELE)/MAH/TEND/02/2016-17.

4. BANGALORE METRO RAIL CORPORATION LIMITED (BMRCL), NO.3, BMTC COMPLEX, KENGAL HANUMANTHAIAH ROAD, SHANTI NAGAR, BENGALURU KARNATAKA-560027. (R4 AMENDED VIDE COURT ORDER DTED 12.02.2024) …RESPONDENTS

(BY SRI. VIKRAM A. HUILGOL, ADVOCATE FOR SMT. M.R. SINCHANA, ADVOCATE FOR R-1; SRI ASHWIN G. RAJ, ADVOCATE FOR R-2; SRI. H.T. JAGANNATHA, ADVOCATE AND SRI. DEEPAK M., ADVOCATE FOR R-3; SRI. N.N. HARISH, ADVOCATE FOR R-4 ) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R1 TO R3 ARE JOINTLY AND SEVERALLY LIABLE TO PAY THE COMPENSATION OF RS.30,00,000/- ALONG WITH 18 PERCENT INTEREST TO THE PETITIONERS ON ACCOUNT OF THE DEATH OF YUVARANI AGED ABOUT 14 YEARS. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioners are before this Court seeking a Writ in the nature of Mandamus, directing respondents No.1 to 4, who are jointly and severally liable, to pay compensation of Rs. 30,00,000/- with interest at the rate of 18% per annum to the petitioners on - 3 - NC: 2024:KHC:25902 WP No. 13692 of 2022 account of the death of their daughter, who was aged about 14 years at the time of the accident.

2. On 19.08.2018, petitioner No.1 and his daughter Yuvarani, aged about 14 years, had gone to Shivanpura on a motorcycle to attend a housewarming ceremony of their relatives. While returning after attending the function, near Kadugodi-Hope Farm, at Dinnuru Cross, Ward No. 83, Kadugodi, Mahadevapura Zone, an electric streetlight pole became dislodged from its concrete base and fell on the heads of petitioner No.1 and his daughter. Both petitioner No.1 and his daughter sustained injuries, but the daughter succumbed to her injuries on 20.08.2018 at the hospital.

3. A case was registered against respondent No.3, a private electrical contractor responsible for maintaining the electric streetlight poles in the area, and the Bruhat Bengaluru Mahanagara Palike (BBMP) in Crime No. 216/2018 for offenses punishable under Sections 337, 338, and 304(A) of the IPC. After investigation, the police filed a charge sheet against respondent No.3.

4. The learned counsel for the petitioners submits that, in identical circumstances, a coordinate bench of this Court in WP No.1383/2020 and connected petitions and WP No. 11070/2019 granted compensation to the petitioners therein by applying the principles under the Motor Vehicles Act. Therefore, the present petition under Article 226 of the Constitution of India to grant compensation is maintainable. - 4 - NC: 2024:KHC:25902 WP No. 13692 of 2022

5. Per contra, the learned counsel for the respondents argued that, since disputed facts are involved, the appropriate remedy for the petitioners is to approach the jurisdictional civil court to adjudicate their claims. Furthermore, the disputed question of negligence cannot be addressed in this petition and must be adjudicated by the civil court after providing an opportunity to the parties. Additionally, the counsels contended that the accident and death resulted from contributory negligence on the part of petitioner No.1.

6. Sri Vikram Aditya Huilogol, learned Senior Counsel representing respondent No.1-BBMP, submitted that the accident was caused solely due to the negligent act of respondent No.3 - the contractor responsible for maintaining the electric streetlight pole. Therefore, the liability to pay compensation cannot be fastened on BBMP. In the alternative, if respondent No.1 is held liable, it should be granted liberty to recover the compensation amount awarded from respondent No.3.

7. Heard the learned counsels for the petitioner and respondents and perused the documents submitted on record.

8. The issues that arise for consideration are:

1. Whether the petitioners have established that the death of their daughter is attributable to the tort of nonfeasance on the part of respondents No.1 and 3?

2. Whether the respondents are liable to pay damages to the petitioners? - 5 - NC: 2024:KHC:25902 WP No. 13692 of 2022 Both issues are addressed together to avoid repetition of facts and for convenience.

9. A perusal of the objections filed by the respondents indicates that they have made mere denials, disputing the exact cause of death and alleging contributory negligence on the part of petitioner No.1. Except for asserting that the petitioners must strictly prove the allegations against the respondents as contained in their memorandum, the respondents have not specified any instance of contributory negligence on the part of petitioner No.1 that led to the death of the deceased.

10. A reading of the complaint dated 20.08.2018, the FIR in Crime No. 216/2018 dated 19.08.2018, the post-mortem report in P.M. No. 288/18 dated 20.08.2018, and the charge sheet dated

02.02.2022, undisputedly establishes that the cause of the accident and death was the fall of a rusted streetlight pole on the head of the deceased.

11. Admittedly, the responsibility for the maintenance of public roads and streetlights, including electric streetlight poles, is vested in respondent No.1 under the Karnataka Municipal Corporation Act, 1976. The reduction in the inherent strength of the streetlight pole due to rust and its subsequent dislodgement from its concrete base, causing it to fall on the heads of petitioner No.1 and the deceased, was due to a lack of supervision and maintenance by respondent No.1-BBMP.

12. Under the Karnataka Transparency in Public Procurement Rules, 2000, an agreement dated 30.08.2016 - 6 - NC: 2024:KHC:25902 WP No. 13692 of 2022 (Certificate No. IN-KA02415860489820O) was executed between respondent No.1-BBMP and respondent No.3 - the contractor responsible for maintaining the streetlight poles in Ward No. 83, Kadugodi, Mahadevapura Zone. A conjoint reading of relevant clauses in the tender document and the agreement indicates that respondent No.3 was liable for the maintenance of any damaged or deteriorating poles during the contract period, and that the BBMP could remedy the defects at the risk and cost of the contractor.

13. Thus, respondent No.1-BBMP, as the principal, was statutorily obligated to maintain the electric streetlight poles and had appointed respondent No.3 as its agent to execute the maintenance work. The High Court of Gujarat, in the case of Varsha Engg Pvt Ltd. v. Vijay Traders, AIR 1983 Guj 166, held that a principal is answerable for the actions of its agent. Additionally, the Supreme Court in the case of Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt, AIR 1966 SC 1697, affirmed the principle of vicarious liability, whereby a principal is liable for the actions of its agent performed with the consent of the principal. Therefore, respondents No.1 and 3 are joint tortfeasors of nonfeasance and are jointly and severally liable for the damages payable to the petitioners.

14. However, under Section 212 of the Indian Contract Act, 1872, an agent is obligated to conduct business with reasonable diligence and compensate the principal for any direct consequences of the agent’s neglect or misconduct. The facts of the present case establish gross negligence on the part of - 7 - NC: 2024:KHC:25902 WP No. 13692 of 2022 respondent No.3, exposing them to liability to compensate the respondent No. 1 - BBMP for its wrongful loss.

15. The issue of compensation payable on the grounds of vicarious liability in the case of wrongful death resulting from the commission of a tort of nonfeasance by a State entity was addressed by a coordinate Bench of this Court in the case of C. Anjali v. BESCOM and Ors. in W.P. No. 11070/2019 : D.D.

28.03.2024, wherein the ratio in respect of the applicable law was concluded at paragraph (6), as hereunder: “a) A writ petition filed under Article 226 of the Constitution of India for enforcement of public law remedy is distinct from the remedy available to claim compensation under private law remedy before civil courts. b) Breach of statutory obligation resulting in harm can be addressed through a public law remedy under Article 226, with compensation granted for such breach by a state authority. c) Disputed facts regarding the cause of an accident and quantification of damages, such as income earning capacity and economic potential of a child, can be addressed in a civil court. However, principles from Motor Vehicles Act or the Employees Compensation Act can be applied in determining compensation without regarding the parties to the civil court. d) The court can adopt principles from relevant statutes, such as the Motor Vehicles Act, for quantifying compensation - 8 - NC: 2024:KHC:25902 WP No. 13692 of 2022 in writ jurisdiction cases, without necessarily referring the matter to civil courts solely based on the involvement of factual considerations.”

16. In view of the above, the instant writ petition is maintainable, and the compensation payable may be quantified based on the settled principles applied in motor vehicle accident cases.

17. Accordingly, the compensation awarded is as hereunder:

3. Age of victim Occupation : : 14 years Student & help to parents No. of dependants : Father & mother

4. Multiplier applied

6. Deduction Future prospectus

7. Monthly income : : : : 15 50% 40% Rs.12,500/- (12,500 x 1/2 = 6,250/-) (as per Lok Adalat chart) (6,500 x 12 x 15 = 11,25,000/-) 40% of future prospects. 6,500/- x 40/100 = 2600/- 6,500/- + 2600/- = 9,100/-

8. Loss of dependency = 16,38,000/- (9,100/- x 12 x 15) - 9 - NC: 2024:KHC:25902 WP No. 13692 of 2022

9. a) b) c) d) Conventional heads: Loss of companionship Funeral expenses Loss of estate = = = Rs.25,000/- Rs.25,000/- Rs.25,000/- Filial consortium (Rs.50,000/- each) = Rs.1,00,000/ Total compensation: Loss of dependency Conventional heads: --------------------------- Total Rs.1,75,000/- = = Rs.17,55,000/- Rs.1,75,000/- ---------------------------- Total Rs.18,13,000/- ORDER 1) The instant writ petition is allowed. 2) The respondent No. 1 is hereby directed to compensate the petitioners to the tune of INR 18,13,000/-, along with interest at the rate of 6 % p.a. thereon, to be computed from the date of accident till the date of the actual realisation. 3) The respondent No. 1 is at liberty to recover the actual compensation paid to the petitioners from respondent No.3, in accordance with law. - 10 - NC: 2024:KHC:25902 WP No. 13692 of 2022 4) The said exercise shall be completed within three weeks from the date of receipt of this order. Sd/- (HEMANT CHANDANGOUDAR) JUDGE BKM