Delhi District Court
Sh. Asgar Ansari vs B.S.E.S. Rajdhani Power Ltd on 8 July, 2022
IN THE COURT OF MS. MONA TARDI KERKETTA,
ADDITIONAL DISTRICT JUDGE-1,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
CS No.476185/15
CNR No. DLNE01-000033-2015
1. Sh. Asgar Ansari, S/o Mohd. Karim Ansari
Aged about 47 years
2. Smt. Johra, W/o Sh. Asgar Ali, Aged about 42 years
Both R/o A-43, Gali No.9, Mohalla Dilshad
Masjid, Old Mustafabad, Delhi-110094 ............Plaintiffs
vs.
1. B.S.E.S. RAJDHANI POWER LTD.
OFFICE AT OPPOSITE KARKARDOOMA COURTS,
THROUGH ITS DIRECTOR
2. S.H.O., P.S. KARAWAL NAGAR
DISTRICT NORTH EAST, DELHI
3. M/S ELECON ENGINEERS
85-A, TOP FLOOR,
KILKORI, NEW DELHI-14
4. RELIANCE GENERAL INSURANCE
OFFICE AT 14TH FLOOR VIJAYA BUILDING
BARAKHAMBA ROAD CONNAUGHT PLACE
NEW DELHI-110001 ..........Defendants
Date of institution of the suit : 11.03.2014
Date of final arguments : 12.11.2021
Date of the Judgment : 08.07.2022
Final Decision : Suit Decreed qua
defendant no.1.
Appearances :
For plaintiff : Sh. Sanjeev Mehta, Adv.
For defendant no.1 : Ms. Ritu Gupta, Adv.
For defendant no.3 : Sh. Gautam Pal, Adv.
Defendant no.2 and 4 are ex-parte.
CS No.476185/15 Page 1 of 24 ADJ01(NE)/Delhi
SUIT FOR COMPENSATION UNDER THE FATAL ACCIDENT ACT
JUDGMENT
Facts of the Case
1. The brief facts of the case as disclosed in the plaint are that plaintiff no.1 and 2 are parents of deceased Ramzan Ansari, who was running a Grocery Store at 43A, Gali No.9, Delhi and was earning Rs.20,000/- per month. The family of plaintiff no.1 comprises of himself ,his wife and five children and it was the deceased who was the sole bread earner of the family. Plaintiff no.1 is unable to undertake any job due to consistent poor health. The other family members such as Sultana Ansari aged about 16 years, Akhtar Ansari aged about 13 years, Afsana Ansari aged about 10 years and Abid Ansari aged about 5 years are, studying in school and were dependent on deceased, who was aged about 23 years and had taken the sole responsibility to bring up and groom up his younger siblings and was taking care of their each and every kinds of needs.
2. It is further stated that on 29.06.2013, at about 09.30 pm deceased was going outside after closing the shop and plaintiff no.1 was at some distance away. Unfortunately, one overhead live wire of 11 KV fell down from the electric pole and snapped on deceased due to which he expired on the spot. Someone intimated the PCR and police visited the spot and found Ramzan Ansari in the dead condition and live wire was lying near the dead body. The crime team also visited the spot, inspected the site, got the site photographed and also took into possession the dead body. Also, of overhead wire after getting the electricity switched off with the help of officials of defendant CS No.476185/15 Page 2 of 24 ADJ01(NE)/Delhi no.1.
3. It is further stated that on the statement of plaintiff no.1, an FIR No.379/13 was registered at PS Karawal Nagar. The incident was witnessed by many local inhabitants besides plaintiff no.1. During the course of investigation, IO got the seized live wire and pole in question and inspected from a govt. Electrical Inspector. The seized live wire was hanging since long time, prior to the incident and a complaint was also lodged by local inhabitants with the officials of defendant no.1 but of no avail. Autopsy was conducted and doctor concerned confirmed that deceased had expired due to electrocution. The body of deceased was handed over to his family after postmortem. 40 days rituals were performed as per custom and about Rs.50,000/- was spent on the same. It is further stated that the said incident had occurred due to the negligence and poor maintenance of the overhead wires which were worn out and were not replaced by defendant no.1 while knowing very well that it could have led to disaster. The principles of res ipsa-loquitor, strict and absolute liability are fully applicable in the facts and circumstances of the present case.
4. It is further stated that deceased was getting lucrative response for his Grocery job. Plaintiffs have placed on record the bills issued to deceased and also got prepared accounts from the Chartered Accountant, which proved that deceased was having income of Rs.25,000/- per month. Out of which, he was paying monthly rent of Rs.2,000/- electricity charges of Rs.2,000/-, salary of Rs.5,000/-to his helper, transport charges of Rs. 3000/- & stationery, uniform, tuition etc. charges of Rs. 3000/- and pocket expenses of Rs.300/- each to his siblings and rest of the amount was being utilized in household expenses. Deceased added up popular food items such as Paneer CS No.476185/15 Page 3 of 24 ADJ01(NE)/Delhi Tikka, Burger items, Momos and Soyabin Chaps because of which there was every possibility that within the passage of six months, his income would have increased from Rs.20,000/- to Rs.30,000/- per month. The income would have further increased by passage of time as the business of every businessman increases with the passage of time. However, after the demise of deceased, the shop was closed as it was deceased alone who was having skill to operate the shop and to purchase the commodities at compatible price. The death of deceased is a blow for plaintiffs and no amount of money can fill up the vacuum created by this accident. It was expected that deceased would have served plaintiff till the age of 70 years as life expectation in their family is up to 75 years. Plaintiffs are entitled for the loss of pecuniary damages i.e. loss of present, future income, future prospects and also non-pecuniary damages and claimed a lumpsum amount of Rs.20,00,000/- against defendant no.1 , 3 and 4.
5. Plaintiffs prayed to pass the following reliefs in their favour and against defendants :-
5.1) A decree of Rs.20,00,000/- alongwith pendente lite and future interest @ 12% per annum defendant no.1, 3 and 4. 5.2) A direction to defendant no.2 to file on record a copy of the site plan, seizure memo of the live wire, photographs taken at the site and electrical inspection report of the live wire and pole in question for the necessary disposal of the present suit.
5.3) Any other or further relief which this Hon'ble Court deems fit and proper in the facts and circumstances of the case.
6. Defendant no.3 and 4 were impleaded in the array of parties on an application under order I rule 10 CPC by the order dt.
18.07.2014 passed by Ld. Predecessor. Defendant no.2 and 4 were CS No.476185/15 Page 4 of 24 ADJ01(NE)/Delhi
proceeded exparte vide order dated 19.09.2014. Defendant no.1 contested the present suit on the following grounds :
6.1) The accident took place due to reasons beyond the control of defendant no.1 and it took all the precautions and immediate urgent steps as humbly possible 6.2) Deceased came in contact of insulated cable which hanged due to strong wind and heavy rain on 29.06.2013. The information regarding hanged 11kv HVDS cable in Gali No.1, Dilshad Masjid was received by Sh. Varun Kumar at 21.15 hrs. on 29.06.2013 through mobile no.9990969293. The information was also forwarded to the contractor supervisor (Mr. Chander Bhan) and Shri Vinay Tripathi, A.M. (Gokulpuri Sub Division) at 21.17 hrs. telephonically as well as through SMS. Shri Vinay Tripathi had also forwarded the same message to Mr. Athar Singh (TO), Chander Bhan, Rakesh (line man) at 21.18 hrs and directed to immediately reach the site and disconnect the supply. Unfortunately, before the line man could reach the spot, the accident already had taken place at or around 21.30 hrs., as a result the DP fuse was blown and supply was affected. 6.3) The electrocution, if any, was not due to any negligence on behalf of defendant no.1 at all. Defendant no.1 had given the contract for the annual maintenance inter alia of HT and LT network in the area in question to defendant no.3 and hence liability if any, is that of defendant no.3.
6.4) For the claims on account of electrocution, defendant no.1 was insured with defendant no.4 and hence the claim if any against defendant no.1 need to be settled and finally paid by defendant no.4. 6.5) The cable had broken down due to heavy rain and wind and deceased came in contact of the same as perhaps he was careless or not careful enough to notice the hanging cable and avoid the same. Had the deceased, who was an adult, been careful, the said CS No.476185/15 Page 5 of 24 ADJ01(NE)/Delhi accident would have been avoided.
6.6) The presence of the officials of defendant no.1 and that of contractor at the spot only demonstrates that they were vigilant and took immediate steps on receiving the complaint. 6.7) The contract of the annual maintenance of the electric wires, cables etc. was with defendant no.3 and maintenance works were being carried out as per rules and regulations provided under the Electricity Rules as amended up to date.
6.8) Plaintiffs with malafide intentions concocted a story regarding earnings of deceased and dependence of his family members on him, to create evidence.
6.9) The suit of plaintiffs deserved to be dismissed with heavy cost.
7. Defendant no.3 has contested the present suit on the following grounds:
7.1) As per the agreement, defendant no.3 had to act as labour contractor only and provide adequate manpower as per the direction of Engineer- in-charge of defendant no.1. Defendant no.3 can be held liable only for poor workmanship of work assigned, delay in attending, fixing the forwarded complaint and handling of safety measure during and after execution of work assigned. 7.2) The workers of defendant no.3 have always worked under the control, supervision and to the satisfaction of Engineer-in-charge of defendant no.1.
7.3) No complaint of deceased or any person from that locality was received regarding hanging of cable or otherwise and for carrying out any work, at any point of time or prior to the incident. Defendant no.3 came to know about the incident only after having been informed by defendant no.1.
CS No.476185/15 Page 6 of 24 ADJ01(NE)/Delhi 7.4) As per the agreement, all the materials and spares parts
required for carrying out the jobs had to be provided by defendant no.1.
As per penalty clause, defendant no.3 was never penalized / suspended by defendant no.1 for any reason in the past. Further, even after the incident, the contract of defendant no.3 was extended by defendant no.1 that speaks volume about the efficiency, dedication and workmanship of defendant no.3.
7.5) The High Voltage Distribution System (HVDS) installed in the deceased's locality, was not approved by the Delhi Electrical Authority, Govt. of Delhi , which is the sole responsibility of defendant no.1.
7.6) Defendant no.3 was never summoned or called by the police during investigation of the incident and defendant no.1 alone was held responsible for the incident by the police and Electrical Inspector, Govt. of Delhi.
7.7) There may be numerous reasons for snapping of cable. It could be also overheating/bursting of the cable due to overloading which is beyond the area of operation of defendant no.3. 7.8) Complaint log book of Sub Division Karawal Nagar for the period from January, 2013 to July, 2013 from defendant no.1 may be called to ascertain whether defendant no.1 had forwarded any prior complaint to defendant no.3 regarding cable hanging since long time and prior to the incident and complaint lodged to defendant no.1 by local people.
7.9) There is an agreement between defendant no.1 and defendant no.4 regarding claims on account of electrocution / third party, the compensation, if any, has to be settled by defendant no.1 and be paid by defendant no.4.
7.10) No income tax return or any proof of earning was filed by plaintiffs regarding income of deceased and it appeared that the bills CS No.476185/15 Page 7 of 24 ADJ01(NE)/Delhi were prepared from same bill book only for the purpose of making out a case to claim exorbitant compensation from defendants. The said bills appeared to be forged and fabricated.
7.11) Plaintiffs did not file any documentary evidence to prove that deceased was running grocery shop or that he added up popular items like paneer tikka, soyabin chaap, momos and burger items in his shop. Plaintiffs did not file license issued by the MCD for running the grocery shop under the Shop & Establishment Act or under any other Act. Plaintiffs did not file the electricity bill of grocery shop, any photograph, menu or visiting card of the grocery shop run by deceased.
7.12) Defendant no.3 was neither responsible for the incident nor liable to pay any compensation. The pole and wires belonged to defendant no.1.
8. Plaintiffs filed replication to the written statement of defendant no.3 denying all the contents of the written statement and reiterated the version as taken in the plaint.
9. Vide orders, dated 21.11.2014, the following issues were framed by Ld. Predecessor of this court, on the basis of the pleadings of the parties :
1. Whether the plaintiff is entitled for compensation of Rs.20,00,000/- alongwith interest @ 12% per annum, as prayed in the suit ? OPP
2. Relief.
10. Subsequent thereto, the matter was fixed for plaintiff's evidence. In order to prove their case, plaintiffs examined PW-1 HC Gyanender Singh from PS Karawal Nagar, Delhi and PW-2 Sh. Dhan CS No.476185/15 Page 8 of 24 ADJ01(NE)/Delhi Singh, TA, Extra Work from GTB Hospital. Plaintiffs further examined plaintiff no.1 as PW-3 who tendered his evidence by way of affidavit Ex.PW-3/A and relied upon the following documents:
i) Ex.PW-3/1 : Copy of ration card (OSR). ii) Ex.PW-3/2 : Copy of rate list. iii) Ex.PW-3/3 : Bills of raw materials.
11. Plaintiffs further examined Sh. Israil as PW-4 and Sh. Mohd. Shamim as PW-5, who tendered their evidence by way of affidavit Ex.PW-4/A and Ex.PW-5/A respectively and relied upon the copy of their Election I Card. Plaintiffs also examined PW-6 Sh. Varun Kumar, DGM, Karawal Nagar, BSES, YPL, Delhi, PW-7 Dr. Neha Gupta, Asst. Professor, Hindu Rao Hospital, Delhi, PW-8 Sh. Subhash Chand, S.O., BSES, YPL, Karawal Nagar, Delhi, PW-9 SI Sandeep Kumar, PS Karawal Nagar, Delhi. Plaintiff also examined Sh. Nirmal Singh as PW-10 who tendered his evidence by way of affidavit Ex.PW- 10/A. All the witnesses were duly cross-examined by learned counsels for defendant no.1 and 3. Plaintiff's evidence was closed in affirmative on 15.01.2016.
12. Subsequent thereto, the matter was fixed for defendant's evidence. Defendant no.1 examined Sh. Varun Kumar as D1W-1 who tendered his evidence by way of affidavit Ex.DW-1/A and relied upon the following documents :
a) Mark A : Copy of accident report. b) Mark B : Copy of contract order with M/s Elecon Engineers. c) Ex.D1W1/1 : Copy of letter filed by plaintiffs (OSR).
13. Defendant no.3 examined D3W-1/A Sh. Dibyendu Paul, Partner of M/s Elecon Engineers. Defendant no.3 further examined CS No.476185/15 Page 9 of 24 ADJ01(NE)/Delhi D3W2 Sh. Mukesh Gupta, SPIO & Dy. Electrical Inspector, Govt. of NCT of Delhi in support of its case, who tendered his evidence by way of affidavit Ex.D3W2/A and relied upon the following documents :
a) Ex.D3W2/1 : Application under RTI Act. b) Ex.D3W2/2 : Reply of application under RTI Act. c) Ex.D3W2/3 : Copy of covering letter no.ED4(ID-07)/E1- Lab/2015/2369 dated 13.03.2015 which is de-
exhibited as the same is not found filed on record.
d) Ex.D3W2/4 : Application under RTI Act. e) Ex.D3W2/5 : Reply to application under RTI Act.
f) Ex.D3W2/6 (colly) : Certified copies of letter no.ED5(877)/06/13205 dated 06.10.2009 issued by DGM (O&M), Division KWR, BSES Yamuna Power Ltd., Gokul Puri, certified copy of inspection proforma no.ED5(877)/06 dated 09.09.2009 regarding HVDS Installation at Dilshad Masjid and certified copy of request for inspection of HVDS installation at Dilshad Masjid from BSES Yamuna Power Ltd. vide letter no.ND/2005-06/HVDS/East-Dilshad Masjid dated 16.09.2006 alongwith copy of Treasury Challan of Rs.60,800/-.
14. Defendants evidence was closed vide order dated 25.01.2018.
15. Subsequent thereto, the matter was fixed for final arguments which were lastly addressed by both the parties on 12.11.2021.
16. In final arguments, plaintiffs reiterated their case as CS No.476185/15 Page 10 of 24 ADJ01(NE)/Delhi stated in pleadings and in addition submitted the following arguments :
a) PW-4/ a local inhabitant deposed that deceased used to run a Grocery shop and also sell food items like Paneer Tikka, momos etc. and his preparations was so good that all said food items used to be sold within 2-3 hours. He further deposed that deceased used to charge Rs.90/- for half plate and Rs.120/- for full plate of paneer tikka and Rs.120/- for full plate of soya chaap and Rs.70 for half plate and Rs.40/- for momos etc.
b) PW-5 Mohd. Shamim also deposed on the line of PW-4 and confirmed that the shop in question was closed after his death.
c) PW-7 Dr. Neha Gupta confirmed that cause of death of deceased was electrocution.
d) PW-9 SI Sandeep Kumar proved copy of FIR, site plan, seizure memo of high tension wire. Seizure memo showed that the cable was measuring about 25 to 30 feet and was worn out at many places.
e) PW-10 Nirmal Singh deposed that he also used to sell similar food items and they were sold at double rate of raw material and 1/3rd of cost was arrived on preparation of the same.
f) Evidence of DW-1 & DW-3 proved that the overhead wire in the area was not having the tripping system and also safety device approved by the Inspector for rendering the line electrically harmless in case it breaks.
g) Defendant no.1 &3 failed to prove that the overhead wire broke because of thunderstorm or rain. Also, defendant no.1 did not place on record copy of the Insurance Policy.
h) The negligence is well emerged on record and principle of res-ipsa-loquitor is prima facie applicable in the present case. The principle of strict & absolute liability are also applicable. (Ref: Delhi CS No.476185/15 Page 11 of 24 ADJ01(NE)/Delhi Jal Board Vs. Rajkumar 2006 ACJ 1025 Delhi.
a) If documents on record are not disputed by other side, then the same shall be deemed to have been admitted by the other side. (Ref: G. Ravindranath Vs. Sriniwas 2013 ACJ 2131). Carrying of the business of Panner Tikka, Soyabean, Momos is well proved on the basis of documents of purchasing of the raw material on record which are not challenged. Even otherwise, the cost of preparation of these items is 1/3rd and rest 2/3rd is margin and after deducting all the expenses. Plaintiff proved that the total monthly expenses. The bifurcation of the expenditure incurred by deceased was not challenged.
b) While calculating the quantum of compensation certain factors such as double of minimum wages for self-employed person, 40% increase as future prospects, pecuniary and non-pecuniary compensation, loss of love and affection, filial consortium, loss of estate, funeral etc. must be taken into account. Non-pecuniary compensation should also be awarded. Due to procedural lapses the claimants cannot be deprived of a reasonable compensation. (Ref:
Bahadur Singh Vs. Bhagwati Yadav MAC No.566/2013;Vidya Devi Vs. DTC FAO No.369/99; Shiva Kumar Vs. Managing Director, BMTC(2017(2) TAC 11 SC; Sarla Verma Vs. DTC 2009 ACJ,1998; National Insurance Co. Ltd. Vs. Praney Sethi ACJ 2700 SC; Magma General Insurance Co.Vs. Nanu Ram 2018 ACJ 2782. As such, plaintiffs are entitled to compensation of Rs.23,38,680/- alongwith 9% interest per annum as ought to be awarded to a skilled worker in the year 2013 being the wage fixed @ Rs.9386/- per month.
Plaintiffs also relied upon the following judgments : A) Cassidy Vs. Ministry of Health Vol.2 KB 343 p 363. B) Northern St. Blasting Pvt. Ltd. Vs. Harries 1997(71) ALJR 1428.
CS No.476185/15 Page 12 of 24 ADJ01(NE)/Delhi C) Union of India Vs. Dhyan Singh and others.
17. Defendant no.1 submitted the following arguments besides reiterating its case as stated in the written statement :-
a) Plaintiffs issued a letter dated 30.06.2013 to defendant no.1 whereby they agreed to settle the matter with BSES for an amount of Rs.5,00,000/-.
b) Defendant no.1 is not liable as the accident took place due to reasons beyond the control of BSES and inspite of defendant no.1 took all the precautions and immediate urgent steps as humanly possible.
c) The cable which caused death was hanging due to strong wind and heavy rain on 29.06.2013. The cable / wire broke only on the day on which deceased died and never before.
d) The shop of deceased was part of his residence only. No photograph of the shop filed on record. There is no documentary age proof of deceased. The ration card filed shows that deceased was born in year 1993. Thus, deceased was most probably aged 20 years at the time of his death. Deceased was uneducated as such there was no proof of his being skilled labour, as such the compensation has to be given on the basis of unskilled labour.
e) The electric current marks only on his hand till elbow proves that deceased of his own touched the hanging wire leading to his death.
18. In final arguments, defendant no.3 also reiterated the contents of written statement and in addition submitted the following arguments:
a) From the statement of D1W1, it is established on record that deceased died due to negligence of defendant no.1 as it is CS No.476185/15 Page 13 of 24 ADJ01(NE)/Delhi defendant no.1 alone who is liable to compensate plaintiffs.
b) There is no clause in the agreement/contract with defendant no.1 by which defendant no.3 can be held entitled to pay compensation to any third party/consumer. It can be held liable to pay compensation or hospitalization expenses only to its employees only.
in case of any accident and injury.
Defendant no.3 also relied upon the following judgments : a) Delhi Jal Board Vs. Raj Kumar & Ors. 125(2005)DLT 120(DB). b) MC Mehta Vs Union of India AIR 1987 SC 1086. c) Kamal Singh Vs. BSES Rajdhani Power Ltd. & Ors.
bearing CS No.611724/16 decided on 22.02.2020 & Adesh Kumar Jain Vs. BSES bearing CS No. 1899/2016 decided on 28.11.2020 passed by Delhi District Courts.
d) Northern Blasting Pvt. Ltd. Vs. Harries 1997(71)ALJR 1428.
19. The issue-wise findings of the court are discussed as under: -
Issue No.1: Whether plaintiffs are entitled for compensation of Rs.20,00,000/- alongwith interest @ 12% per annum, as prayed in the suit ? OPP
20. The onus to prove this issue is fixed upon plaintiffs. Let us now examine whether or not plaintiffs are entitled to receive compensation from defendant no.1, 3 and 4, as claimed in the plaint, on the basis of materials produced on record. Defendant no.1 argued that defendant no.1 had given the contract for the annual maintenance inter alia of HT and LT network in the area in question to defendant no.3 and hence liability if any arises, is that of defendant no.3 and CS No.476185/15 Page 14 of 24 ADJ01(NE)/Delhi also the claims on account of electrocution, if any against defendant no.1 has to be settled and finally paid by defendant no.4.
On this aspect, the court is refraining from discussing the evidence that emerged from record out of the evidences produced by defendant no. 1,3 & 4 to show that how they were not negligent in causing death of deceased and are not liable to pay compensation to plaintiffs, on account of existence of some interse contract and insurance policy. In the considered opinion of this court, there being no privity of contract between plaintiffs and defendant no.1, 3 &4, the interse contract or agreement among defendant no.1,3&4, if any, was not binding upon plaintiffs. The privity of contract for indemnification as per policy or contract applies only to defendant no.1,3 and 4 interse and not to plaintiffs. Therefore, it is defendant no.1 alone which can be held liable for negligence on its part leading to death of deceased. However, defendant no.1 is at liberty to pursue the legal remedies against defendant no.3 & 4 in accordance with law, by way of a separate and independent action and as such defendant no.3&4 are held not liable to pay any compensation to plaintiffs.
21. Now dealing with the issue whether or not deceased expired due to negligence on the part of defendant no. 1 and plaintiffs are entitled to receive compensation from defendant no.1, as claimed in the plaint. It is observed that cross examination of plaintiff no.1 by defendant no.1 & 3 are mostly confined to deceased's employment, earning and dependence of other family members on him. There is no cross-examination on the aspect of cause of death and circumstances leading to death of deceased. During cross examination on behalf of defendant no.1 on this aspect, plaintiff no.1/PW-3 was merely suggested that on the date of incident, there was a heavy storm and rain; the lineman had asked not to touch the broken wire but despite CS No.476185/15 Page 15 of 24 ADJ01(NE)/Delhi his warning, the broken wire was touched by deceased causing his death. There is no cross -examination to rebut the claims of plaintiffs regarding circumstances leading to death of deceased and its cause. Hence, version of plaintiffs on those aspects remained unchallenged and unrebutted. The abovesaid suggestions put to PW-3 was not proved by leading evidence.
22. Defendant no.1 argued that deceased was guilty of contributory negligence. Deceased was careless or not careful enough to notice the hanging cable to avoid the same and the said accident would not have happened. Defendant no.1 further argued that presence of electric current marks only on deceased's hand till elbow proved that deceased of his own touched the hanging wire leading to his death. In this regard, this court is of the opinion that defendant no.1 was not able to prove by leading evidence that there was heavy wind and storm at the time of incident and because of which overhead live wire got broken and deceased was negligent in not noticing the hanging cables. In fact, if this argument is accepted to be true, the factum of hanging cable at such low height itself goes on to indicate that cables were not installed or fastened properly and at appropriate height and the same were within the reach of any passersby. So far as argument regarding presence of injury mark on deceased hand only till elbow is concerned, the court finds this argument devoid of any merit. Defendant no.1 neither produced its own witness to prove the same nor cross examined PW-7 Dr. Neha Gupta who had conducted autopsy of the deceased, on this aspect. Furthermore, D1W1 Sh. Varun Kumar examined as witness on behalf of defendant no.1 also could not prove the same in his evidence and in fact, he admitted not being present at the spot at the time incident, in the cross- examination.
CS No.476185/15 Page 16 of 24 ADJ01(NE)/Delhi
23. Now dealing with the evidence led by defendant no.1 to prove and disprove respective cases. Defendant no.1 examined D1W1 Sh. Varun Kumar for the said purpose. In his examination-in- chief, D1W1 reiterated the version of defendant no.1 as stated in the written statement. However, in cross-examination, the credibility of this witness was completely impeached. In fact, it emerged from the cross examination that his entire evidence is based on hearsay information and official records, which otherwise is hit under the provision of section 60 of the Indian Evidence Act. In cross-examination, D1W1 admitted that BSES is a licensee for distribution, installation and operation of the electricity in the area in question and the overhead high tension insulated 11 KV cable was laid by BSES. He further deposed that he did not know whether BSES had taken permission from Delhi Electricity Authority, Delhi Government for laying of overhead high tension wire of 11 KV in the said area. He seemed to give evasive reply on this aspect on the ground that the file in this respect is maintained by Installation department and did not produce any counter evidence. D1W1 further admitted that at the relevant time the supply of the electricity was through HVDS (High Voltate Distribution System). The witness admitted that Electrical Inspector from Delhi Electrical Regulatory Authority had visited the site and prepared the report with respect to the present accident, but the same was not filed; the name of the person who had informed him about the incident is not mentioned in the record of BSES. He deposed that the Lineman had informed him that deceased had touched the live cable wire but the lineman was not produced as witness. Post mortem report indicated that deceased had already expired prior to hospitalization. D1W1 claimed to have recorded statement of the Lineman but BSES did not place the same on record.
CS No.476185/15 Page 17 of 24 ADJ01(NE)/Delhi
24. D1W1 further deposed that he did not know whether at the time of installation of the electricity through HVDS any permission was taken from any authority. He further deposed that he did not know whether BSES had complied with the provisions of the Indian Electricity Rules 1956 and Central Electricity Authority Regulations 2012 on the pretext that the same pertains to Installation Department and did not produce any counter evidence. He further deposed that it was the responsibility of BSES as well as AMC holder to carry out the inspection of entire HDVS. He further deposed that he did not know whether the HDVS installed by BSES was approved by Delhi Electrical Authority, Government of Delhi, again on the pretext that the same pertained to Installation department and again no counter evidence was produced. It is needless to state that approval of the concerned authority is mandatory in nature and nothing was brought on record to show that the same was done by BSES. Further, again there is nothing on record to prove that BSES complied with the direction of the office of Chief Electrical Inspector, Government of NCT for necessary approval of installation, operation and distribution of electricity through HVDS system in the concerned area and all safety features/DO fuses were installed as per the norms/guidelines of Indian Electricity Rules, 1956 and Central Electricity Authority (Measures relating to safety and electric supply) Regulations 2010. In fact, it emerged from the evidence of D3W2 that no approval was given to BSES for supply of power through HVDS in the area in question and in fact, the department rejected the application of BSES for approval of HVDS vide letter dated 06.10.2009 Ex.D3W2/6 due to several deficiencies found after inspection of HVDS installation and BSES was asked to rectify the deficiencies with regard to installing safety measures in the HVDS system. There is nothing on record to show that CS No.476185/15 Page 18 of 24 ADJ01(NE)/Delhi those deficiencies were removed and the safety devices were installed. Further evidence of DW-1 & DW-3 proved that the overhead wire installed in the area was not having the tripping system. Rule 29 r/w rule 61-A of the Electricity Rules 1956 provides that the overhead cable must be accompanied by tripping system. Similarly, rule 91 of Electricity Act,1956 states every overhead line erected any part of street or public place shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks but both safety measures were found to have been not adopted by defendant no.1. Hence, it is established on record that there was negligence on the part of defendant no.1 which led to causing death of deceased.
25. It is well settled that even if negligence on the part of defendant no.1 is not established, the supplier of electricity is liable for the damage caused without any proof of negligence on its part and liability to this effect is strict. In the judgment titled as M. P. State Electricity Board Vs. Shail Kumari & Ors. AIR 2002 SC 551, it has been held that " 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 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 defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions''.
CS No.476185/15 Page 19 of 24 ADJ01(NE)/Delhi In the judgment titled as Parvati Devi & Ors, Vs. Commissioner of police, Delhi & Ors. 2000(3) SCC 754 also, it was held that "once it is established that the death occurred on account of electrocution while walking on the road, necessarily the authorities concerned must be held to be negligent''.
26. Thus, not only on the basis of evidence adduced on record the negligence of defendant no.1 is proved but also in all circumstances, by applying the principle of strict liability. Also, the rule of "Res-Ipsa-Loquitor" applies against defendant no.1 in the given set of facts and circumstances making defendant no.1 liable.
27. Now dealing with quantum of compensation to be paid to plaintiffs. Plaintiffs claimed that their son was earning Rs.25,000/- per month and in order to prove the same they examined plaintiff no.1/ PW-3 Asgar Ansari, PW-4 Israil, PW-5 Mohd. Shamim and PW-10 Nirmal Singh. However, apart from making bare assertion in this regard, no cogent evidence was led to prove the monthly income of deceased @ Rs.25,000/-.No income tax return or any convincing proof of earning was filed by plaintiffs regarding income of deceased. The bills Ex. PW-3/3 seemed to have been prepared from same bill book. Plaintiffs failed to file any documentary evidence to prove that deceased was running grocery shop or that he added up popular items like paneer tikka, soyabin chaap, momos and burger items in his shop. Plaintiffs also did not file license issued by the MCD for running the grocery shop, electricity bill, any photograph, menu or visiting card of the grocery shop run by deceased.
28. It is observed that in cross-examination, PW-3 deposed that his deceased son was about 21-22 years old at the time of incident and he had not even completed his primary education. PW-1 admitted CS No.476185/15 Page 20 of 24 ADJ01(NE)/Delhi that he did not use to sit in the shop of deceased son; he did not remember whether he had mentioned in the FIR that deceased son was running a shop of Paneer Tikka & Soya Chaap and he had not stated in the FIR that deceased son was also running a Provisional Store. PW-1 further deposed that whether his deceased son used to file ITR or not. He admitted that he did not file any license issued by MCD for permission to run the said shop or that he did not file any photograph of the shop; no rent agreement was filed on record to prove tenancy of the shop run by deceased. He was not aware whether deceased had any sale tax registration no. or TIN No. for running the business. The witness admitted that he did not file the complete bill book of the raw materials purchased. The medical records regarding illness or incapacity of plaintiff no.1 to prove his incapacity to work was not filed on record. No rent was paid for the shop which was outside their house. He did not remember the rates of the food items sold by his deceased son. Therefore, the income of deceased needs to be assessed as per minimum wages then given to an unskilled worker.
29. The damages in the present case can be assessed on the principles as recognized under Motor Vehicle Act as there is no other enactment for determining the compensation in case of death caused due to electrocution.
30. COMPUTATION OF COMPENSATION:
Medical expenses :
It is established on record that deceased had expired on the spot of accident and was taken to hospital where the postmortem was conducted at a Govt. hospital. Hence, no medical expenditure was undertaken by plaintiffs in the treatment before the death of deceased.
CS No.476185/15 Page 21 of 24 ADJ01(NE)/Delhi Therefore, plaintiffs are held not entitled to any compensation under this head.
Loss of dependency :
Admittedly deceased was a resident of Delhi and is also proved from ration card Ex.PW-1/2. Ld. Counsel for plaintiffs argued that plaintiff no.1 was not working due poor health and the entire family comprising of plaintiffs and 04 siblings of deceased were totally dependent upon him. Admittedly, plaintiffs failed to file any medical document to prove the incapacity of plaintiff no.1 to do any work and earning any income and plaintiffs being parents of 04 siblings are primarily responsible for their upkeep and maintenance. No education proof of deceased was filed by plaintiffs. In fact, in cross-examination, PW-3 admitted that deceased had not even completed his primary education. The age of deceased was stated to be 21-22 years. The ration card Ex.PW-3/1 placed on record showed year of deceased's birth as 1993 meaning thereby his age at the time of accident must have been between 20-21 years. In the given facts and circumstances, the minimum wages of an unskilled worker on the date of incident being 29.06.2013 applicable in Delhi was Rs. 7722/-, shall be applied. The multiplier of 18 is applicable in this case as per judgment of Sarla Verma & Ors. Vs. DTC & Anr.(2009)6 SCC 121 since deceased was within the age group of 15 to 25 years. As per the judgment of National Insurance Company Limited Vs. Pranay Sethi & Ors. (2017) 16 SCC 680, 40% addition shall be given to deceased towards future prospects as he was below 40 years at the time of incident and was engaged in self-employment. The income of deceased with 40% future prospects comes out to 7722/- + (7722/- x 40/100)= Rs.10,811/-per month. Hence, his annual income comes out to Rs. 10,811/- x 12 x 18 = Rs.23,35176/-. The deceased was unmarried hence deduction of 50% (half) of total income is required to CS No.476185/15 Page 22 of 24 ADJ01(NE)/Delhi be made in the present suit for personal living expenses of deceased. The loss of dependency comes out as Rs.23,35176/2=Rs.11,67,588/-. Therefore, plaintiffs being parents are entitled to entire amount of Rs. 11,67,588/- (Eleven Lakhs Sixty Seven Thousand Five Hundred Eighty Eight only).
LOSS OF CONSORTIUM:
Plaintiffs and 04 siblings of deceased, suffered loss of love and affection of deceased due to his untimely death. Hence, a sum of Rs.44,000 x 6= Rs.2,64,000/- is awarded in favour of plaintiffs and 04 siblings for loss of consortium as per the law laid down in Magma General Insurance Company Ltd. Vs. Nanu Ram, (2018) 2 SCC
130.
LOSS OF ESTATE AND FUNERAL EXPENSES :
A sum of Rs.16,500/- x 2= Rs. 33,000/- is awarded under both the heads i.e. Rs.16,500/- each on account of loss of estate and funeral expenses of the deceased as per the law laid down in National Insurance Company Limited Vs. Pranay Sethi & Ors. ( Supra).
31. Thus, the total compensation turns out to be Rs.14,64,588/- (Rs. Fourteen Lacs Sixty Four Thousand Five Hundred & Eighty Eight only) which defendant no.1/BSES is liable to pay to plaintiffs. On this amount, plaintiffs are awarded pendente lite and future interest of 9% per annum. This issue is accordingly answered in plaintiffs favour and against defendant no.1/BSES.
Relief
32. In view of the findings on the issue framed, as discussed above, the suit of plaintiff is hereby decreed for the relief of recovery of a sum of 14,64,588/-(Rs. Fourteen Lacs Sixty Four Thousand Five CS No.476185/15 Page 23 of 24 ADJ01(NE)/Delhi Hundred and Eighty Eight only) along with pendentelite & future interest @ 9% per annum against defendant no.1/BSES, till the realization of the decretal amount.
33. Costs of the suit are also awarded in favour of plaintiffs.
34. A Decree be drawn accordingly.
35. File be consigned to record room, after due compliance.
Digitally signed by MONA MONA TARDI KERKETTA
Location:
TARDI KARKARDOOMA
COURTS, DELHI
KERKETTA Date: 2022.07.08
16:55:06 +0530
Announced in the open court MONA TARDI KERKETTA
on this 8th day of July, 2022 Addl. District Judge(NE)-01
Karkardooma Court, Delhi
CS No.476185/15 Page 24 of 24 ADJ01(NE)/Delhi