Delhi District Court
Smt. Om Wati vs Bses Rajdhani Power Ltd on 30 September, 2014
IN THE COURT OF SH BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
Civil Suit No. 53/12
1. Smt. Om Wati
Wife of Late Sh. Sri Bhagwan
2. Sh. Ajit Singh
S/o late Sh. Sri Bhagwan
Both R/o RZ12, Nanda Block,
Mahavir Enclave, New Delhi
3. Smt. Rekha
W/o Sh. Govind Ram
D/o Late Sh. Sri Bhagwan
R/o House No. 1, New Roshanpura,
Village Najafgarh, New Delhi
......... Plaintiffs
Versus
1. BSES Rajdhani Power Ltd.
BSES Bhawan, Nehru Place,
New Delhi
2. Reliance General Insurance Co. Ltd.
1414H, 14th Floor, Hansalaya Building,
15, Barakhamba Road, New Delhi
......... Defendants
CS No. 53/12
Om Wati & Ors. Vs. BSES & Anr. Page 1 of 28
SUIT FOR RECOVERY OF RS. 19,00,000/
(RUPEES NINETEEN LACS ONLY ) AS
DAMAGES/COMPENSATION
(a) Date of institution : 06.02.2009
(b) Date when judgment reserved : 16.09.2014
(c) Date of Judgment : 30.09.2014
JUDGMENT:
1. Vide this judgment I shall dispose of the present suit filed by the plaintiffs against the defendants for recovery of Rs.19,00,000/ on account of damages alongwith pendente lite and future interest @ 18% per annum from the date of filing of the suit till the realization of the amount.
2. Brief facts of the case as set out in the plaint are that the plaintiffs are the legal heirs of the deceased Sh. Sri Bhagwan who died due to electrocution on 07.07.2008. The plaintiff no. 1 is wife and the plaintiff no. 2 and 3 are the son and daughter of deceased Sh. Sri Bhagwan, who came in contact with high voltage naked electric wire which provides electricity to the house of the plaintiffs as well as to other properties. The electricity to the house of the plaintiffs and other adjoining buildings/houses is being provided through the overhead electricity wires carrying high voltages which were not covered. The wires have been laid at a height of 13 to 14 feet from the ground level CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 2 of 28 and at a distance of one feet and touching the front wall of the houses thereby endangering the lives of the resident. The said fact was brought to the notice of defendant no. 1 by the Residents Welfare Association of the Nanda Block, but the defendant no. 1 failed to take any remedial measures to increase the height of the wires. On 07.07.2008, the deceased came on the roof of the house and all of a sudden he was pulled/sucked by the high voltage electricity wires due to which he became unconscious. He was immediately taken to hospital, where he was declared dead. The incident of death of deceased due to electrocution was reported to the police.
3. It is further stated that the death of deceased has been caused due to electrocution by overhead high voltage wires which were touching the roof of the house of the deceased and due to negligence on the part of defendant no. 1 who despite various complaints, failed to take necessary precaution. All the plaintiffs were dependent upon the income of the deceased who was President of Residents Welfare Association, Nand Block (Regd.) and was employed as a Lift Operator in Ministry of Defence. He was drawing a monthly salary of Rs. 18,984/ besides other benefits and was also entitled to pension as per rules after retirement. The deceased was aged 55 years possessing good health and robust physique and would have supported the plaintiffs at least upto the age of 80 years. The CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 3 of 28 plaintiffs are entitled to compensation/damages due to untimely death of deceased Sh. Sri Bhagwan due to negligence on the part of the defendant no. 1. The defendant no. 1 is insured against public risk vide policy No. 1301372713200002 issued by defendant no. 2 which covered the period of accident and thus the defendant no. 2 being the insurer shall also be liable to indemnify the defendant no. 1. Hence, the present suit.
4. The plaintiffs have prayed for passing a decree in their favour and against the defendants for a sum of Rs. 19,00,000/ along with pendente lite and future interest @ 18% per annum from the date of filing the present suit till realization of decreetal amount.
5. The defendant no. 1 filed the written statement denying that high voltage cables were laid in the colony in which the deceased was residing. It is contended that there are only low voltage wires passing and providing electricity to the houses of plaintiffs and other properties and the low voltage wires never suck a person from a distance of even 5 feet. The deceased has slipped and fallen on the wires at the time he was pouring water on the newly constructed first floor of the house which was being constructed in an illegal manner without any permission. The floor was wet as water being sprinkled on the walls of new construction which led to electrocution of the deceased. The son of the deceased namely Sh. Ajit Singh has also CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 4 of 28 given statement on 07.07.2008 to the police at the hospital that the deceased has died due to electrocution after falling upon the wires at the time of pouring water upon newly constructed first floor of his house and hence there is no negligence on the part of the defendant no. 1 in the death of deceased Sh. Sri Bhagwan. The other contents are stated to be wrong and denied and the defendant no. 1 has prayed for dismissal of the suit.
6. The defendant no. 2 has filed separate written statement wherein the defendant no. 2 has admitted that it has entered into a contract of insurance with defendant no. 1 of indemnification of losses or liability vide policy bearing No. 130137213200002 which covers the risk of present suit, however it is contended that until and unless the defendant no. 1 is held liable to pay for the loss claimed in the present suit, no liability can be fastened upon the defendant no. 2. The contents of the plaint are denied for want of knowledge and the defendant no 2 has prayed for dismissal of the suit.
7. The plaintiffs have filed separate replication to the written statement of defendant no. 1 and of defendant no. 2 reaffirming the averments made in the plaint and controverting the averments made in the written statement.
8. From the pleadings of the parties, following issues were framed for adjudication vide order dated 24.09.2011: CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 5 of 28
1. Whether the death of Late Sh. Sri Bhagwan, who died due to electrocution, was caused due to the negligence of defendant no. 1 ? OPP
2. Whether the plaintiff is entitled to the damages/compensation from the defendants for the death of Late Sh. Sri Bhagwan, and if so, what amount, and from which of defendant? OPP
3. Relief
9. Thereafter, the plaintiffs in order to prove their case, examined plaintiff no. 2 Sh. Ajit Singh as PW1 who is son of deceased Sh. Sri Bhagwan. He filed his evidence by way of affidavit which is Ex. PW1/A wherein he deposed as per the averments made in the plaint. During his deposition, he has also placed on record the copy of legal notice sent to the defendant no. 1 as Ex. PW1/1, postal receipt and UPC as Ex. PW1/2 and Ex. PW1/3 respectively.
10. The plaintiffs have also examined Ct. Ratan Lal from PS Dabri, Delhi as PW2, who has placed on record the copy of DD entry bearing No. 39B recorded on 07.07.2008 regarding intimation of death of deceased due to electrocution received from Chanan Devi Hospital and same is Ex. PW2/A.
11. PW3 is Sh. S.K. Rastogi, AEE Quantity Surveyor and Contracts from Military Engineering Services, Garrison Engineers (U) Plant & Machinery, Delhi Cantt who has placed on record the CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 6 of 28 certified copy of certificate with regard to salary of deceased from July 2008 to 31.10.2012, which is Ex. PW3/1, certified copy of salary certificate upto the date of retirement in respect of deceased as Ex.PW3/2, supplementary pay bills pursuant to recommendation of 6th Pay Commission in respect of deceased as Ex. PW3/3 to Ex. PW3/5.
12. The another fourth witness examined by the plaintiffs is Sh. D.K. Chaudhary, Assistant Garrison Engineer from AGE Plant and Machiner, Kirbi Place, Delhi Cantt (He has been inadvertently mentioned as PW3) who has placed on record the salary record of deceased as Ex. PW3/1 and the pension benefit certificate of deceased as Ex. PW3/2.
13. Another fifth witness is Sh. Arun Pathak, President, Welfare Association (Regd.) of Nanda Block, Mandir Marg, Mahavir Enclave, Palam, New Delhi (inadvertently mentioned as PW4) who has placed on record the copy of complaint dated 13.04.1999 as Ex. PW4/1, complaint dated 04.04.2009 as Ex. PW4/2, complaint dated 17.02.2008 as Ex. PW4/3, complaint dated 17.02.2008 as Ex. PW4/4 and intimation sent on 27.02.2008 as Ex. PW4/5.
14. The sixth witness is Sh. B.N. Mishra, Medical Officer cum Forensic Expert and Criminologist, Department of Forensic Medicine, Deen Dayal Upadhyay Hospital, New Delhi who has proved on record the postmortem report of deceased which is Ex. PW5/1. CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 7 of 28
15. On the other hand, the defendant no. 1 has examined Sh. Yogesh Kumar, working as Dy. General Manager with defendant no. 1 as D1W1, who filed his evidence by way of affidavit which is Ex. D1/1 wherein he has deposed more or less as per the averments made in the written statement. He has also placed on record the original photographs showing construction as Ex. D1/W1, copy of video/CD as Ex. D1/W3 and copy of insurance policy issued by defendant no. 2 as Ex. D1/W4.
16. The defendant no. 1 has also examined HC Surender Singh, No. 119/SW from PS Dabri, Delhi as D1W2 who has placed on record the copy of DD entry bearing No. 28A dated 07.07.2008 as Ex. DW2/1.
17. The defendant no. 2 has not led any evidence.
18. I have heard the Ld. Counsel for the plaintiff and defendant no. 1 and none turned up for defendant no. 2 for advancing the arguments. I have also perused the record carefully.
19. On the basis of material available on record, my issue wise findings are given as under:
ISSUE NO. 1
20. There is no dispute that Sh. Sri Bhagwan died on 07.07.2008 due to electrocution. The plaintiffs who are the legal heirs CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 8 of 28 of late Sh. Sri Bhawgan have claimed that death of late Sh. Sri Bhagwan has occurred due to negligence on the part of defendant no. 1 who provides electricity through the overhead electricity wires carrying high voltages which were not covered at the time of incident and were also close to the house of the plaintiffs. As per the plaintiffs, at the time of incident, the deceased who was standing on the roof of the house was sucked by the high voltage naked electric wires and died due to electrocution. It is further alleged that the defendant no. 1 failed to take necessary precaution despite a number of complaints given by the deceased being President of Residents Welfare Association of the locality on various occasions and the gross negligence on the part of the defendant no. 1 has resulted into the death of late Sh. Sri Bhagwan.
21. While the defendant no. 1 has contended that there was no negligence on its part in the death of deceased and it was the negligence on the part of deceased himself who was pouring water on the newly constructed floor of the house which was being illegally constructed. The defendant no. 1 further claims that the deceased had slipped due to the wet floor and fell upon the wires and died due to electrocution. It has also been contended by defendant no. 1 that no high voltage cables were being laid in the locality where the deceased was residing and the DVB pattern of low voltage wires was followed CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 9 of 28 in the locality and the low voltage wires never suck a person even from a distance of 5 feet.
22. The onus was upon the plaintiffs to prove that death of late Sh. Sri Bhawan was caused due to negligence on the part of defendant no. 1. In order to discharge the onus, the plaintiff no. 2 Sh. Ajit Singh, who is son of deceased has examined himself as PW1 and has reiterated the aforesaid averments in his examination in chief. In the crossexamination of PW1, nothing material could be extracted. PW1 has categorically stated that he was present at the time of incident on 07.07.2008. He further stated that no construction work was being carried on the first floor of the house at the time of the incident. He denied the suggestion that he was not present in his house at the time of incident on 07.07.2008 or that construction work was being carried at the first floor of the house at the time of incident. He further denied the suggestion that electricity wire were covered at the time of the incident. He voluntarily stated that wires have been covered much later.
23. It is also proved from the evidence of PW2 that a DD entry was made vide Ex. PW2/A regarding intimation of death of Sh. Sri Bhagwan due to electrocution to the police vide DD entry number 39B.
24. PW5 Sh. B.N. Mishra, Medical Officer has also proved CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 10 of 28 the postmortem report of deceased as Ex. PW5/1, which shows that the cause of death of deceased Sh. Sri Bhagwan was respiratory failure subsequent to electrocution.
25. From the aforesaid evidence led by the plaintiffs, it has been proved that Sh. Sri Bhagwan died due to electrocution. Now, it has to be seen as to whether the death was caused due to negligence on the part of the defendant no. 1 as claimed by the plaintiffs or he died due to his own negligence as contended by the defendant no. 1.
26. D1W1, the witness examined by defendant no. 1, in his examinationinchief has deposed that on 07.07.2008, the deceased was pouring water upon a newly constructed first floor of his house and due to the water being sprinkled on the new walls under construction, the deceased slipped on the wet floor and fell upon the wire and this led to the electrocution of the deceased. He further deposed that construction was not carried out as per the sanctioned plan and no intimation was given to defendant to shift the lines of electricity and thus there was no negligence on the part of the defendant. The witness further deposed that on the date of the incident the deceased's son gave a statement to the police that his father died as his father had slipped on the wet floor of the first floor under construction and thereafter died due to the electrocution. CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 11 of 28
27. Ld. Counsel for defendant no. 1 has also vehemently argued that statement of the son of the deceased was recorded on the day of incident i.e. on 07.07.2008 whereby he reported that his father had slipped on the wet floor of the first floor under construction and came into contact with the wires and died due to the electrocution. To prove this fact, the defendant no. 1 has also examined HC Surender Singh as D1W2 who has placed on record the copy of DD No. 28A dated 07.07.2008 as Ex. DW2/1 wherein the aforesaid fact that the deceased was pouring water on the newly constructed walls of first floor and due to the wet floor he had slipped and fell upon the wires and thereafter died due to electrocution, was mentioned.
28. However, it is to be noted that the plaintiffs have already proved on record the DD entry No. 39B dated 07.07.2008 vide Ex. PW2/A wherein there is no mention of any such statement of the son of the deceased. The said DD entry No. 39B Ex. PW2/A has been duly proved on record by PW2, while the DD entry Ex. DW2/1 sought to be proved by the defendant no. 1 through the witness D1W2 could not be duly proved as the said DD entry bears the number 28A in which there is also reference of DD No. 39B. It is not understandable that how DD No. 39B could have been referred in the DD No. 28A dated 07.07.2008. The witness D1W2 has not recorded the said DD entry and he has no personal knowledge of the same which fact he has CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 12 of 28 admitted in his crossexamination.
29. The defendant no. 1 has not examined any police officer to prove that any such statement was made by the son of the deceased on the day of incident nor any such statement has been produced on record nor the said statement was confronted to the son of deceased who has examined himself as PW1 in his crossexamination. As such, the defendant no. 1 has miserably failed to prove that any such statement was made by son of the deceased before the police on the date of incident.
30. The defendant no. 1 has even failed to prove that any unauthorized construction was being raised by the deceased at the time of incident and he was pouring water on the walls of illegally constructed floor of the house.
31. Though, D1W1 has sated in his evidence that in the month of December 2008, the officials of the defendant company visited the house of the deceased person and had seen the construction work in progress. He further deposed that defendant company issued an accessibility notice to the plaintiffs for not taking proper clearance from the defendant company, however despite the receipt of notice, no attention was given by plaintiffs and the house was constructed without obtaining any clearance from the defendant company. He further deposed that negligence of the deceased and plaintiffs is CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 13 of 28 clearly established from the fact that despite being aware of the construction, no request was made to defendant company for shifting the wire from the house or increasing the height of the wires.
32. In the crossexamination, D1W1 stated that in the year 2008, he was posted in the quality department of defendant no. 1 at Jafar Pur, Operation and Maintenance. He stated that Mahavir Enclave New Delhi was not under Jafar Pur. He further stated that Sh. S.S. Rana was posted for the maintenance of electricity line of Mahavir Enclave in the year 2008 which falls in the Palam division. He admitted that Jafar Pur and Palam Division of defendant no. 1 are at different places and the staff of Jafar Pur were not responsible for the maintenance of electricity wires installed in Mahavir Enclave. He stated that Sh. S.S. Rana has since retired and his whereabouts are available in the record of defendant no. 1 and he is still alive. He further stated that he does not have any personal knowledge other than the knowledge based on record and whatever he stated in his affidavit the same is as per the record available. He admitted that he never visited Mahavir Enclave in the year 2008.
33. From the aforesaid evidence of D1W1, it is evident that this witness was not posted in the year 2008 at Mahavir Enclave where the deceased was residing. Rather he was posted at Jafar Pur and staff of Jafar Pur were not responsible for the maintenance of electricity CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 14 of 28 wires installed in Mahavir Enclave. From the evidence of this witness, it is also evident that one Sh. S.S. Rana was posted at Mahavir Enclave in the year 2008 for the maintenance of electricity wires and he has now retired but his whereabout are available in the record of defendant no. 1. As such, when this witness even was not posted in the area Mahavir Enclave where the deceased was residing in the year 2008, his deposition in his examinationinchief that official of defendant company visited the house of deceased in the month of December 2008 and saw the illegal construction being carried out by the plaintiffs is not reliable. Sh. S.S. Rana, who was posted at that point of time at Mahavir Enclave was the best witness who could have proved that officials of BSES visited the house of deceased and saw illegal construction in progress. But the defendant no. 1 has not examined the said Sh. S.S. Rana. The defendant no. 1 has also not examined any other official from MCD or any Govt. Department to prove that any illegal construction was raised by the plaintiff. Even the alleged accessibility notice sent by defendant no. 1 to the plaintiffs in this regard has also not been produced on record.
34. The video CD Ex.D1W3 relied upon by the defendant no. 1 to show that illegal construction was being carried out by the deceased at the time of incident is also of no help to the defendant no. 1. I have seen the said video CD which shows some construction CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 15 of 28 work being in progress. But there is nothing in the video CD Ex. D1/W3 to ascertain that said construction was being raised at the house of the plaintiffs. Even this video CD is not proved as per law as D1W1 stated in his crossexamination that he has no idea as to who shot the video Ex. D1/D3. He further stated that he cannot say whether any construction was going on in the property of deceased. Though, again he denied the suggestion that no construction was going on in the premises of deceased in July, 2008. But he categorically admitted that he never visited Mahavir Enclave in the year 2008. He further stated that he has not inspected the premises of deceased since the date of incident i.e. 2008. He even could not say whether the house of deceased was one storied, two storied or more. He stated that from the record, he can say that the house was single storied but the construction was thereon going from the single storied onward. But no such record has been produced on record on the basis of which the witness stated so. He admitted that they have not complained to the concerned authority about the construction as the same came to their notice only after the accident. Though, he stated that Sh. S.S. Rana, Sr. Engineer, BSES visited the house of deceased in December, 2008, but nothing has been placed on record to show that Sh. S.S. Rana, Sr. Engineer, BSES visited the house of deceased in December, 2008 nor the said officer has been examined by the defendant no. 1 who could CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 16 of 28 have proved that he visited the house of deceased in the month of December, 2008.
35. From the aforesaid evidence, the defendant no. 1 has failed to prove that illegal construction was being carried out by the deceased and on the date of incident he was pouring water on the newly constructed walls of first floor and due to wet floor, he had slipped on the wires and died due to electrocution.
36. So far the another contention of the defendant no. 1 that no high voltage wires were laid in the locality where the deceased was residing and only the low voltage wires were laid in the locality is concerned, admittedly the electricity wires were laid by Delhi Vidyut Board (DVB) in the area and the defendant no. 1 is the successor of Delhi Vidyut Board. Therefore, the onus was upon the defendant no. 1 being the successor of DVB to prove that low voltage wires were laid in the locality where the deceased was residing.
37. D1W1, examined by defendant no. 1, in his cross examination has categorically admitted that whether it was DVB or present BSES, they have periodical maintenance of wires. He stated that he cannot say when the wires near the house of deceased were laid. Voluntarily, he stated that it was laid in the time of DVB. He stated that BSES maintains the record of maintenance of wires. He further stated that he can depose only after checking in the office CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 17 of 28 whether BSES has the record of maintenance of wiring in the locality of deceased. He stated that the maintenance record of wiring has not been placed on the record of this case.
38. The aforesaid evidence of D1W1 makes it clear that periodical maintenance of wires was carried out by the DVB and present BSES and the maintenance record of wiring is being maintained by BSES i.e. defendant no. 1, but same has not been placed on record. As such, the maintenance record of wiring were in the power and possession of the defendant no. 1 which could have produced by the defendant no. 1 to prove that low voltage wires were laid in the locality of deceased and no high voltage wires were laid as claimed by the plaintiffs. The said maintenance record was material and could have thrown light and substantiate the claim of the defendant no. 1. But the defendant no. 1 despite maintaining the said record has withheld the same. Therefore, an adverse inference is liable to be drawn against the defendant no. 1. Reliance may be placed upon Gopal Krishan Ji Ketkar Vs. Mohd. Haji Latif & Ors. AIR 1968 Supreme Court 1413 in which it was held that a party in possession of best evidence which would throw light on the issue in controversy with holding it. Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. Party cannot rely on abstract doctrine of onus of proof or on the fact that he was not CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 18 of 28 called upon to produce it.
39. Ld. Counsel for defendant no. 1 has argued that there was no burn marks on the body of deceased and in case of death due to high voltage electrocution generally there is burn marks on the body of deceased and it shows that no high voltage wires were laid in the locality.
40. PW5 Sh. B.N. Mishra, Medical Officer who has proved the most mortem of deceased has stated in his examination in chief that during the preparation of autopsy, the concerned doctor observed the findings on the body of deceased and opined that the cause of death was respiratory failure subsequent to electrocution.
41. In his crossexamination, PW5 admitted that the PM report does not reflect any internal and external injury on the body of the deceased, however the findings, i.e. observation on the lungs and part reveals multiply findings related to electrocution. He further admitted that in case of high voltage electrocution generally there is burn marks on the body of deceased. Voluntarily, he stated that if the body is in contact with humid skin or wet clothes or wet body, sweats etc, then there would be positively burn marks on the body. He further stated that the time of the body with live wire is also relevant for determining the burn marks on the body.
CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 19 of 28
42. Since the witness has categorically stated that if the body is in contact with humid skin or wet clothes or wet body, sweats etc, then there would be positively burn marks on the body and the time of the body with live wire is also relevant for determining the burn marks on the body, therefore, merely on this count that there was no burn marks on the body of deceased, does not ipso facto prove the contention of the defendant no. 1 that no high voltage wires were laid in the locality. Even otherwise, the defendant no. 1 has not been able to prove that electricity was being provided in the colony through low voltage wires.
43. The plaintiffs have examined Sh. Arun Pathak, President, Welfare Association (Registered) as PW4 who has proved on record the complaints/ representation dated 13.04.1999, 04.04.1999, 17.02.2008 made to Delhi Vidyut Board, predecessor of defendant no. 1/BSES requesting the Delhi Vidyut Board to remove the live wires which were causing a danger to the lives of the residents vide Ex. PW4/1 to Ex. PW4/4. The defendant no. 1 has not disputed the receipt of these complaints/representation. D1W1 has categorically admitted in his crossexamination that the representations Ex. PW4/1 to Ex. PW4/4 have been received by defendant no. 1. Voluntarily, he stated that these representations were for some other matter and not concerning the premises of deceased.
CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 20 of 28
44. Perusal of complaints/representations Ex. PW4/1 to Ex. PW4/4 shows that vide complaint dated 04.04.2009 Ex. PW4/2, the Residents Welfare Association (Regd) of Nanda Block, Mahavir Enclave, New Delhi had requested the Delhi Vidyuit Board to look into the matter and to do the needful regarding rectification of overhead wires which supply the electricity from A to J Block and which have been burnt several times and are dangerous to human life. The reminders to the same effect vide Ex. PW4/1, Ex. PW4/3 and Ex. Pw4/4 were sent to the Chairman, Delhi Vidyuit Board.
45. From the evidence of PW4, it stands proved that on earlier occasions also, the Residents Welfare Association of Nanda Block, Mahavir Enclave, New Delhi where the deceased was residing made complaints/representations to Delhi Vidyut Board regarding live electricity wires which were a threat to the human life, but no action has been taken by the Delhi Vidyut Board or by its successor BSES i.e. defendant no. 1.
46. From the facts and circumstances, proved on record, the defendant no. 1 has miserably failed to prove that low voltage wires were laid in the locality. Considering the fact that the risk on account of high voltage naked wires was notified to the Delhi Vidyut Board, predecessor of defendant no. 1, a number of times and there had been no positive act to get the same checked and rectified either by DVB or CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 21 of 28 by defendant no. 1 being successor of DVB, the negligence on the part of defendant no. 1 is quite clear. The records otherwise placed are also suggestive of negligence and apathy on the part of the defendant no. 1. The defendant no. 1 did not take any action to the complaints/representation made to its predecessor DVB repeatedly vide Ex. PW4/1 to Ex. PW4/4 and due to this negligence, the accident occurred resulting into death of Sh. Sri Bhagwan due to electrocution. Hence, it is held that death of deceased was caused due to negligence on the part of defendant no. 1. Accordingly this issue is decided in favour of the plaintiffs and against the defendant no. 1. ISSUE NO. 2
47. As I have already held under Issue No. 1 that deceased died due to negligence on the part of the defendant no. 1, therefore the plaintiffs being the legal heirs of deceased are entitled to damages/compensation.
48. As far as the quantum of compensation is concerned, it has been contended by the Ld. Counsel for plaintiff that the compensation can be assessed on the lines of the compensation being granted under the Motor Vehicles Act. Since compensation under the said Act is also being granted on the basis of tortious liability of a party and, therefore, this court is of the opinion that there is no impediment, legal or factual, in relying over the principles of CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 22 of 28 assessment of the compensation on account of accidental death.
49. In Sarla Verma Vs. DTC & Anr.,AIR 2009 SC 3104, the Hon'ble Supreme Court has laid down various guidelines to deal with cases of injuries and fatality suffered in motor accident. The Hon'ble Supreme Court held that : " 7. Before considering the questions arising for decision, it would be appropriate to recall the relevant principles relating to assessment of compensation in cases of death. Earlier, there used to be considerable variation and inconsistency in the decisions of courts Tribunals on account of some adopting the Nance method enunciated in Nance V. British Columbia electric Rly. Co. Ltd. MANU/QB/0483/1951 and some adopting the Davies method enunciated in Davies V. Powell Duffryn Associated Collieries Ltd. MANU/QB/0477/1942. The difference between the two methods was considered and explained by this court in General Manager, Kerala State Road Transport Corporation V. MANU/SC/0389/1994 : AIR 1994 SC 1631 Susamma Thomas. After exhaustive consideration, this Court preferred the Davies method to Nance method. We extract below the principles laid down in Susamma Thomas:
In fatal accident action, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependent as a result of the death. The assessment of damages to compensate the dependents is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependents, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependents during that period, the chances that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 23 of 28 lost his employment or income altogether.
The matter of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependents, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both selfmaintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependents. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase.
The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumedup over the period for which the dependency is expected to last.
It is necessary to reiterate that the multiplier method is logically sound and legally well established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 year of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years - virtually adopting a multiplier of 45 and even if onethird or onefourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34.CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 24 of 28
This is wholly impermissible.
9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death: (a) age of the deceased;
(b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multiplier with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 25 of 28 such multiplier gives the 'loss of dependency' to the family. Thereafter, a conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of Rs. 5,000/ to Rs. 10,000/ should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death ( if incurred) should also added."
50. Before proceeding further, the income of the deceased at the time of his death, needs to be worked out. The monthly income of the deceased as proved on record, comes to Rs. 13,971/. Deduction of personal expenses needs to be made at the rate of 1/3rd portion of the salary. The residual income, thus, comes to Rs. 9314/. No increment/addition is permissible, considering the law laid down in Sarla Verma Vs. DTC.
51. The deceased was 55 years old at the time of accident and thus the multiplier of 11 is to be applied. Thus the loss of dependency comes out to be Rs. 12,29,448/ (Rs. 9314 x12 x11) . In addition to the above and following the principles of determination of compensation under the Motor Vehicles Act, the plaintiffs are entitled to compensation on account of loss of consortium to wife of the deceased, loss of love and affection to the family members, loss of CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 26 of 28 estate and funeral charges.
52. Having regard the facts and circumstances of the case, I grant a sum of Rs. 1,00,000/ to the wife of the deceased as compensation on account of loss of consortium and a sum of Rs. 1,00,000/ towards loss of love and affection to the family members. A sum of Rs. 10,000/ is also granted to the plaintiffs towards loss of estate and a sum of Rs. 25,000/ is awarded to the plaintiffs as funeral charges.
53. As regards liability, there is no dispute about the defendant no. 2 being the insurer of the defendant no. 1. As the defendant no. 1 is the principal tortfeaser and the defendant no. 2 is the insurer, the Insurance company has to indemnify the defendant no.
1 against the wrongs done by defendant no. 1. The liability of the defendant no. 1 and 2 is thus joint and several.
RELIEF
54. As a sequel to my findings under Issue No. 2, the suit of the plaintiff is decreed for Rs. 14,64,448/ in favour of the plaintiffs and against the defendants alongwith pendente lite and future interest @ 9% per annum from the date of filing of the suit till realization of the decreetal amount, which the defendants are liable to pay jointly and severally. The plaintiff is also entitled to cost of the suit. Decree CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 27 of 28 sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court (Balwant Rai Bansal)
on 30th September, 2014 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 53/12
Om Wati & Ors. Vs. BSES & Anr. Page 28 of 28
CS No. 53/12
Om Wati & Ors. Vs. BSES & Anr.
At 4.00 PM
Present: None.
Vide my separate judgment of even date, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendants. Decree sheet be prepared in terms of the judgment.
File be consigned to record room.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 30.09.2014 CS No. 53/12 Om Wati & Ors. Vs. BSES & Anr. Page 29 of 28