Allahabad High Court
Yash Pal Singh (Minor)& Anr. vs State Of U.P. Thru.Prin. Secy. ... on 24 April, 2017
Equivalent citations: AIR 2018 (NOC) 88 (ALL), 2017 (6) ALJ 49
Author: Sheo Kumar Singh-I
Bench: Narayan Shukla, Sheo Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- MISC. BENCH No. - 6929 of 2014 Petitioner :- Yash Pal Singh (Minor)& Anr. Respondent :- State Of U.P. Thru.Prin. Secy. (Electricity )& 5 Ors. Counsel for Petitioner :- S.S. Chaubey Counsel for Respondent :- C.S.C.,Kaushal Mani Tripathi,Prashant Arora Hon'ble Shri Narayan Shukla,J.
Hon'ble Sheo Kumar Singh-I,J.
(Delivered by Sheo Kumar Singh-I, J.)
1. The child is the father of the man. But if the things which have been provided to the child by Almighty God as a natural gift are taken away by the instrumentality of the man through his negligence and carelessness, a question is raised as to how the child will be the father of the man.
2. Two kids, namely Yash Pal Singh, aged about 12 years and Ankit Kumar Yadav, aged about 14 years, were playing ball in front of House No.31 belonging to Mr. R.C. Singh situated in Gaurav Bihar Colony, Police Station Chinhat, Lucknow, and this tragic and heart rending accident took place on 11.06.2011 at about 04.30 PM, when during course of playing ball both innocent children came into contact with a naked 11 KV transmission line passing over by touching the roof of House No.31, and in consequence thereof both the innocent children injured seriously by electrocution as a consequence both hands and a leg of both the children have been amputated, a rare condition, leading to something even worse than 100% permanent disability. Playing with ball is most favourite game of small kids and a source of pleasure and happiness but they were unaware of the fact that the source of happiness will be cause of their sorrow and suffering. Now, for the rest of life whenever they will see the children playing with ball, a tragic memory will revive in their mind reminding this tragic playing with ball, electrocution and amputation of their important organs i.e. hands and one leg.
3. By means of this writ petition filed under Article 226 of the Constitution of India, the injured Yash Pal Singh and Ankit Kumar Yadav have claimed for compensation from the respondents for loss of both arms and a leg severed leaving stumps at a tender age with almost all avenues open to earn and support himself in future shut and so also to be denied the small pleasures of growing up to do ordinary things that children do, and left to face life completely dependent on others till they alive. They may never be able to feed themselves both literally and metaphorically.
4. After the above mentioned incident on 11.06.2011 at 04.30 PM, the petitioner no.1 was got admitted in Dr. Ram Manohar Lohiya Hospital, Gomti Nagar, Lucknow by his sister Richa Singh where he was examined and after giving first aid, the doctors of the Lohiya hospital referred him to King Georges Medical University, Lucknow, where he was admitted and for treatment, both injured persons were shifted to Burn and Trauma Center Lucknow. When the position of the burn injuries became worse and the doctors came to the conclusion that unless both arms from shoulders and the left leg from upper thigh and claw of right leg of other petitioner will not be amputated then their entire body will be affected with gangrene and then they could not be found safe. In these compelling circumstances, the aforesaid parts of the petitioners' body were amputated and the petitioners remained as stump having no arm and one leg. As such, the petitioners have been deprived all the enjoyment/pleasure of life having no hope to recover it. At the time of the incident, petitioner no.1 was studying in Lucknow Public College in class VIII and he was very promising student. Ankit Kumar Yadav, petitioner no.2, was also a student of class X in Diamond Public Inter College, Chinhat, Lucknow and he also suffered from triple amputation of his both arms and one leg leaving him stump and the more unfortunate part, as narrated in the petition, is that the father of Ankit Kumar Yadav was no more at the time of incident and he is the only male issue having two sisters and his mother, having no source of income. The petitioners made a request in the form of representation or complaint raising their grievance before the competent authority which was received in the office of opposite party no.3 but the opposite parties neither paid any compensation to the petitioners nor any decision has yet been communicated to them. Feeling aggrieved against the aforesaid act of the opposite parties, the petitioners made repeated requests through reminders and also approached to the Electricity Minister, Government of Uttar Pradesh and concerned Executive Engineer of the power corporation but of no avail.
5. According to the version of the petitioners, there is a gross negligence on the part of the respondents/corporation in the performance of duties because 11 KV high tension line passes, were installed by the employees of the electricity department/respondents in the year 2010 for providing electricity to Rama Degree College and at the time of installing 11 KV high tension line the local residents strictly objected but the respondents installed high tension line against the norms and safety procedure without adopting any safety measures. It is statutory obligation, duty and responsibility of the electricity authorities to provide safety and protective devices for rendering safeguards and failure to do so entails award of compensation on account of any mishap which occurs by lack of safeguards. By installing high tension line no precaution, safeguard, safety measures or other steps were taken to ensure that live overhead line/wires were at a reasonable and sufficient distance to avoid human contact and in these circumstances the doctrine of strict liability is attracted since the incident occurred due to failure of the respondents/corporation to maintain proper height of transmission wires. Thus, doctrine of res-ipsa-loquitur is applicable. In light of Articles 14 and 21 of the Constitution of India and in view of strict liability the petitioners have prayed for issue of a writ, order or direction in the nature of mandamus commanding the opposite parties to pay the compensation by awarding one crore rupees each to the minor petitioners against trauma, mental shock, pain and agony caused to them and their family members with further request to issue direction in the nature of mandamus commanding the opposite parties to offer employment to the petitioners when the minor petitioners come in the employable age on compassionate ground.
6. In the counter affidavit filed on behalf of opposite party nos. 4 and 6, it has been submitted that since the petitioners unfortunately touched 11 KV high tension line while they were playing, there is no fault of the electricity department. The respondents have denied the liability for payment of compensation on the ground of strict liability on the basis of proceeding under Section 161 which is pending before the authorities concerned. The Managing Director of Madhyanchal Vidyut Vitran Unit, U.P. Power Corporation Limited, opposite party no.3, has filed a separate counter affidavit in which it has been submitted that U.P. Power Corporation Limited has released a press note by which it has advertised for safety of the citizens and houses situated near LT/HT lines. Narrating the provisions of Sections 79 and 80 of the Indian Electricity Rule, 1956, it has been submitted that construction of some buildings near high tension line is against the provisions of the Electricity Act and on the basis of these provisions, the respondents have denied the liability to pay the compensation. It has further been submitted that U.P. Power Corporation Limited had issued office Notification dated 19.06.2008 by which it has been provided that in case of death caused due to electrocution, power corporation will pay an amount of Rs.1,00,000/- (one lakh) as compensation and they have paid the amount aforesaid to the petitioners. Taking recourse to the provisions of Section 161 of the Electricity Act the respondents have denied the responsibility to pay the compensation as claimed by the petitioners.
7. In the rejoinder affidavit, it has been narrated that this Court vide order dated 01.08.2014 had directed the Managing Director of the corporation to file personal affidavit and to make an inquiry. The said order is quoted below:-
"Petitioners are permitted to implead Chief Electrical Inspector, Directorate of Electrical Safety, Vibhuti Khand, Lucknow as respondent no.7 in the array of parties.
Petitioner no.1 has suffered electric shock on account of naked wire of electricity passing adjacent to his house. Serious injury has been caused to the petitioners. Accordingly, they have approached this Court under Article 226 of the Constitution of India.
Option is open to the petitioners to move application under Section 161 of the Electricity Act, 2003 before respondent no.7, who has got power to recommend for payment of compensation after inquiry.
So far as payment of compensation is concerned, at the first instance, the petitioners have to move application to the Chief Electrical Inspector or Electrical Inspector, as the case may be. Accordingly, liberty is given to the petitioners to move application before respondent no.7 within two weeks along with certified copy of this order, and respondent no.7 shall look into the matter and decide the application of the petitioner with regard to controversy within six weeks from the date of filing of application for grant of compensation.
However, one more ground for interference by this Court is that respondents have installed the polls of electricity and carried the electricity line, which seems to be passing in close proximity of the petitioners and others houses, and safety measure should be taken as the matter seems to be of public safety.
Accordingly, we admit the petition and direct the respondents to file counter affidavit containing parawise reply within three weeks. Petitioners will have a week thereafter for filing rejoinder affidavit. List immediately thereafter peremptorily for hearing.
The Managing Director, Madhyanchal Vidyut Vitran Ekai (Unit), U.P. Power Corporation, Shakti Bhawan, Lucknow - respondent no.3 shall also file his personal affidavit containing parawise reply to the writ petition and shall also bring on record necessary measure, which should be taken for the safety of citizen, while carrying electricity line through out the State of U.P. The decision taken by the respondents with regard to compensation as well as inquiry report shall also be brought on record. However, compensation shall be subject to final decision of the writ petition. This Court can enhance the compensation while deciding the writ petition finally."
8. In compliance of the aforesaid order, an inquiry report has been submitted by the Director, Electricity Security, Government of U.P., Lucknow, in which negligence of U.P. Power Corporation Limited, Electricity Distribution Division Unit Chinhat, Lucknow, has been found proved. The contents of the inquiry report have been narrated in the rejoinder affidavit with the inquiry report as Annexure RA-2 which goes to show that the incident occurred because of making electricity high tension line in contravention of the rules.
9. The first issue which arises for consideration is as to the duty of care casts on the respondents in maintaining transmission line which is the owner and supplier of the electricity under the Electricity Act, 2003. It would be better to quote the relevant provisions relating to installation of high tension line of electricity and to took necessary security and safety measures.
10. The Parliament has enacted an Act to consolidate the laws relating to generation, transmission, distribution etc. called the Electricity Act, 2003 (hereinafter referred to as the Act). Section 2 (6) of the Act defines the 'Authority' to mean the Central Electricity Authority referred to in Sub-section (1) of Section 70. Section 2 (20) defines the "electric line" to mean any line which is used for carrying electricity for any purpose and includes (a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and (b) any apparatus connected to any such line for the purpose of carrying electricity. Section 2(48) defines the "overhead line" to mean an electric line which is placed above the ground and in the open air but does not include live rails of a traction system. Section 2 (72) defines the "transmission lines".
11. Sections 53, 68 and 161 of the Act read as under:
"Section 53. (Provisions relating to safety and electricity supply):
The Authority may in consultation with the State Government, specify suitable measures for -
(a) protecting the public (including the persons engaged in the generation, transmission or distribution or trading) from dangers arising from the generation, transmission or distribution or trading of electricity, or use of electricity supplied or installation, maintenance or use of any electric line or electrical plant;
(b) eliminating or reducing the risks of personal injury to any person, or damage to property of any person or interference with use of such property;
(c) prohibiting the supply or transmission of electricity except by means of a system which conforms to the specification as may be specified;
(d) giving notice in the specified form to the Appropriate Commission and the Electrical Inspector, of accidents and failures of supplies or transmissions of electricity;
(e) keeping by a generating company or licensee the maps, plans and sections relating to supply or transmission of electricity;
(f) inspection of maps, plans and sections by any person authorised by it or by Electrical Inspector or by any person on payment of specified fee;
(g) specifying action to be taken in relation to any electric line or electrical plant, or any electrical appliance under the control of a consumer for the purpose of eliminating or reducing the risk of personal injury or damage to property or interference with its use.
Section 68. (Provisions relating to Overhead lines):--(1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of sub-section (2).
(2) The provisions contained in sub-section (1) shall not apply-
(a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single consumer;
(b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or
(c) in such other cases, as may be prescribed.
(3) The Appropriate Government shall, while granting approval under Sub-section (1), impose such conditions (including conditions as to the ownership and operation of the line) as appear to it to be necessary.
(4) The Appropriate Government may vary or revoke the approval at any time after the end of such period as may be stipulated in the approval granted by it.
(5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he or it thinks fit.
(6) When disposing of an application under sub-section (5), an Executive Magistrate or authority specified under that subsection shall, in the case of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee.
Explanation. - For the purposes of this section, the expression "tree" shall be deemed to include any shrub, hedge, jungle growth or other plant.
Section 161. (Notice of accidents and injuries):--
(1) If any accident occurs in connection with the generation, transmission, distribution, supply or use of electricity in or in connection with, any part of the electric lines or electrical plant of any person and the accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give notice of the occurrence and of any such loss or injury actually caused by the accident, in such form and within such time as may be prescribed, to the Electrical Inspector or such other person as aforesaid and to such other authorities as the Appropriate Government may by general or special order, direct.
(2) The Appropriate Government may, if it thinks fit, require any Electrical Inspector, or any other person appointed by it in this behalf, to inquire and report-
(a) as to the cause of any accident affecting the safety of the public, which may have been occasioned by or in connection with, the generation, transmission, distribution, supply or use of electricity, or
(b) as to the manner in, and extent to, which the provisions of this Act or rules and regulations made thereunder or of any licence, so far as those provisions affect the safety of any person, have been complied with.
(3) Every Electrical Inspector or other person holding an inquiry under Sub-section (2) shall have all the powers of a civil court under the Code of Civil Procedure, 1908 for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects, and every person required by an Electrical Inspector be legally bound to do so within the meaning of section 176 of the Indian Penal Code."
12. Section provides that the Indian Electricity Rules, 1956 (hereinafter referred to as the Rules) made under section 37 of the Indian Electricity Act, 1910 as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made.
13. The Central Government has also framed the Rules called the Intimation of Accidents (Form and time of service of notice) Rules, 2005. Rule 3 reads as under:
"3. Intimation of accidents.--(1) If any accident occurs in connection with the generation, transmission, supply or use of electricity in or in connection with, any part of the electric lines or other works of any person and the accident results in or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person or any authorized person of the generating company or licensee, not below the rank of a Junior Engineer or equivalent shall send to the Inspector a telegraphic report within 24 hours of the knowledge of the occurrence of the fatal accident and a report in writing in Form A within 48 hours of the knowledge of occurrence of fatal and all other accidents. Where possible a telephonic message should also be given to the Inspector immediately, if the accident comes to the knowledge of the authorized officer of the generating company/licensee or other person concerned.
(2) For the intimation of the accident, telephone numbers, fax numbers and addresses of Chief Electrical Inspector or Electrical Inspectors, District Magistrate, police station, Fire Brigade and nearest hospital shall be displayed at the conspicuous place in the generating station, sub-station, enclosed substation/switching station and maintained in the Office of the in-charge/owner of the Medium Voltage (MV)/High Voltage (HV)/Extra High Voltage (EHV) installations."
14. Chapter IV of the Indian Electricity Rules, 1956 deals with general safety requirements. Rule 29 provides that all electric supply lines and apparatus shall be of sufficient ratings for power, insulation and estimated fault current and of sufficient mechanical strength, for the duty which they may be required to perform under the environmental conditions of installation, and shall be constructed, installed, protected, worked and maintained in such a manner as to ensure safety of human beings, animals and property. According to sub-rule (2) of Rule 29, the relevant code of practice of the Bureau of Indian Standards including National Electrical Code, if any, may be followed to carry out the purposes of this rule and in the event of any inconsistency, the provision of these rules would prevail. As per Sub-rule (3) of Rule 29, the material and apparatus used shall conform to the relevant specifications of the Bureau of Indian Standards where such specifications have already been laid down. Rule 30 reads as under:
"30. Service lines and apparatus on consumer's premises-
(1) The supplier shall ensure that all electric supply lines, wires, fittings and apparatus belonging to him or under his control, which are on a consumer's premises, are in a safe condition and in all respects fit for supplying energy and the supplier shall take due precautions to avoid danger arising on such premises from such supply lines, wires, fittings and apparatus.
(2) Service-lines placed by the supplier on the premises of a consumer which are underground or which are accessible shall be so insulated and protected by the supplier as to be secured under all ordinary conditions against electrical, mechanical, chemical or other injury to the insulation.
(3) The consumer shall, as far as circumstances permit, take precautions for the safe custody of the equipment on his premises belonging to the supplier.
(4) The consumer shall also ensure that the installation under his control is maintained in a safe condition."
15. Rule 35 provides that the owner of every medium, high and extra-high voltage installation shall affix permanently in a conspicuous position a danger notice in Hindi or English and the local language of the district, with a sign of skull and bones. Rule 44-A provides that if accident occurs in connection with the generation, transmission, supply or use of energy in or in connection with, any part of the electric supply lines or other works of any person and the accident results in or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person or any authorised person of the State Electricity Board/Supplier, not below the rank of a Junior Engineer or equivalent shall send to the Inspector a telegraphic report within 24 hours of the knowledge of the occurrence of the fatal accident and a written report in the form set out in Annexure XIII within 48 hours of the knowledge of occurrence of fatal and all other accidents.
16. Rule 46 provides for periodical inspection and testing of installation. Rule 51 provides for provisions required to be observed where energy at medium, high or extra-high voltage is supplied, converted, transformed or used. Rule 74 of the Rules provides that all conductors of overhead lines other than those specified in sub-rule (1) of rule 86 shall have a breaking strength of not less than 350 kg. Rule 77 provides for clearance above ground of the lowest conductor. Rules 79, 80 and 91 read as under:
"79. Clearances from buildings of low and medium voltage lines and service lines-
(1) Where a low or medium voltage, overhead line passes above or adjacent to or terminates on any building, the following minimum clearances from any accessible point, on the basis of maximum sag, shall be observed:--
(a) for any flat roof, open balcony, verandah roof and lean-to-roof-
(i) When the line passes above the building a vertical clearance of 2.5 metres from the highest point, and
(ii) When the line passes adjacent to the building a horizontal clearance of 1.2 metres from the nearest point, and
(b) For pitched roof-
(i) When the line passes above the building a vertical clearance of 2.5 metres immediately under the lines, and
(ii) When the line passes adjacent to the building a horizontal clearance of 1.2 metres.
(2) Any conductor so situated as to have a clearance less than that specified in sub-rule (1) shall be adequately insulated and shall be attached at suitable intervals to a bare earthed bearer wire having a breaking strength of not less than 350 kg.
(3) The horizontal clearance shall be measured when the line is at a maximum deflection from the vertical due to wind pressure.
[Explanation- For the purpose of this rule, expression "building" shall be deemed to include any structure, whether permanent or temporary]
80. Clearances from buildings of high and extra-high voltage lines-
(1) Where a high or extra-high voltage overhead line passes above or adjacent to any building or part of a building it shall have on the basis of maximum sag a vertical clearance above the highest part of the building immediately under such line, of not less than-
(a) For high voltage lines upto and including 33,000 volts 3.7 metres
(b) For extra high voltage lines 3.7 metres plus 0.30 metre for every additional 33,000 volts or part thereof.
(2) The horizontal clearance between the nearest conductor and any part of such building shall, on the basis of maximum deflection due to wind pressure, be not less than-
(a) For high voltage lines upto and including 11,000 volts 1.2 metres
(b) For high voltage lines above 11,000 volts and up to and including 33,000 volts 2.0 metres
(c) For extra high voltage lines 2.0 metres plus 0.3 metre for every additional 33,000 volts or part thereof.
91. Safety and protective devices-
(1) Every overhead line, (not being suspended from a dead bearer wire and not being covered with insulating material and not being a trolley-wire) erected over any part of street or other public place or in any factory or mine or on any consumers' premises shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks.
(2) An Inspector may by notice in writing require the owner of any such overhead line wherever it may be erected to protect it in the manner specified in Sub-rule (1).
[(3) The owner of every high and extra-high voltage overhead line shall make adequate arrangements to the satisfaction of the Inspector to prevent unauthorised persons from ascending any of the supports of such overhead lines which can be easily climbed upon without the help of a ladder or special appliances. Rails, reinforced cement concrete poles and pre-stressed cement concrete poles without steps, tubular poles, wooden supports without steps, I-sections and channels shall be deemed as supports which cannot be easily climbed upon for the purpose of this rule.]"
17. Indian Electricity Rules, 1956, provides safety measures required to be observed for supply of electricity. It is the statutory duty of the person responsible for the supply and maintenance to abide by all the protective measures since it is a dangerous commodity. The respondents/corporation have failed to protect the life of the general public and thus this case falls within the ambit of strict liability. There is a flagrant violation of the Act and Rules by the respondents by not providing any safeguards, checks and balance to prevent escape of energy which caused electrocution in the instant case and causing 100% disability to two children/kids. The medical report reveals that Yash Pal Singh was brought to the hospital by his sister Richa Singh where more than six injuries were found and injuries were so serious that the finger print was not taken due to the reason that both palm and foot were burnt. The Emergency Medical Officer referred the matter vide report dated 11.06.2011 to KGMU, Lucknow. Similarly, the discharge summery of Ankit Kumar Yadav reveals that he was also admitted to the hospital for medical treatment of electrocution burn and on 12.06.2011, he was operated and both the hands from shoulders were amputated. He was again admitted to Trauma Centre on 16.07.2011 and right leg above knee was amputated. The perusal of the photographs, which are on record, expresses the tragic condition of both the kids where their both hands and one leg have been amputated.
18. A person injured by the negligent act of others is definitely entitled to general damages for non-pecuniary loss such as pain, suffering and loss of amenities and also pecuniary loss, both past and future. He has incurred medical expenses as well. The petitioners are entitled for compensation/damages for the embarrassment for the disability and disfigurement. The petitioners are also entitled to damages for the loss of ability to use their limbs, including the loss of pride and pleasure and loss of marriage prospects.
19. Learned counsel for the respondents has submitted that the act comes within the category of act of God.
20. In the present case, the plea of act of God raised by the respondents is not attracted. The children have come in contact with the live wire due to negligence and laxity of the functionaries of the respondents who have failed to maintain the supply lines by taking precautions required under the Act. There was no contributory negligence on behalf of the petitioners. The petitioners were minor. They could not foresee that the loose wire would be lying low on the ground.
21. The Privy Council in the case of Eastern and South African Telegraph Company, Limited v. Cape Town Tramways Companies Limited, reported in (1902) AC 381, has held that the principle of Rylands v. Fletcher, is not inconsistent with the Roman law. It imposes a liability on a proprietor which is measured by the non-natural user of his own property, not by that of his neighbour. It also applies to a proprietor who stores electricity on his land if it escapes therefrom and injures a person or the ordinary use of property.
22. In the case of Corporation of The City of Glasgow v. Taylor, reported in (1922) 1 AC 44, the House of Lords have held that in the case of child eating poisonous berries, the proprietors and custodians of the garden are liable.
23. In the case of Paine v. Colne Valley Electricity Supply Co., Ltd. And British Insulated Cables, Ltd. reported in (1938) 4 All. E.R. 803, it was held that as there was no efficient screening of the dangerous parts in accordance with the provisions of that Act, there was a breach of statutory duty by the first defendants and they were held liable.
24. In the case of Yachuk & another v. Oliver Blais Co., Ltd., reported in (1949) 2 All. E.R. 150, the Privy Council has held that when employee has given an explosive substance to a boy with a limited knowledge in respect of the likely effect of the explosion, the boy having done the act which the child of his years might be reasonably expected to do. This would not be a case of contributory negligence.
25. In the case of Gough v. Throne, reported in (1966) 3 All. E.R. 398, it was held that an ordinary child of 13 1/2 years (unlike an adult) could not reasonably be expected to pause to see for herself whether it was safe to go forward when the lorry driver had beckoned her on, and so the plaintiff had not been negligent in relying entirely on the lorry driver's signal to her to cross.
26. In the case of Croke (a minor) and another v. Wiseman and others, reported in (1981) 3 All. E.R. 852 , the Hon'ble Judges Shaw and Griffiths, have held that the child would be entitled to be compensated for loss of future earnings by applying the appropriate multiplier.
27. The electricity authorities are duty bound to observe precautions/safeguards under the provisions of the Indian Electricity Act and the Rules framed thereunder. Failure of such statutory functions/duties tantamounting to negligence cannot be overcome by alleged statutory obligations on the part of the consumer of the electricity. Electrocution by live wires necessitates strict liability and differs from liability arising on account of negligence and is not relevant in cases of strict liability. The electricity department is liable irrespective of the fact whether the harm could have been avoided by the consumer or injured by taking precautions. It is the case of the petitioners as narrated in paragraph 23 of the petition which has not been contradicted by the respondents by the averments made in the counter affidavit that 11 KV high tension line was installed by the respondents in the year 2010 for providing the electricity supply to Rama Degree College and at the time of installation, the local residents strictly objected but the department refused to accept their requests. In light of the above averments it makes it clear that no precautions, safeguards, safety measures or other steps were taken to ensure that the live overhead line/wire was at a reasonable and sufficient distance to avoid human contact. Hence, by installing the live overhead line/wire and keeping it exposed clearly establishes that no measures were taken to avoid mishap by contact with the wire transmitting high voltage electrical energy. 100% permanent disabilities have been suffered by two minor kids having bright career of their life. The doctrine of strict liability has been discussed by Hon'ble the Apex Court in the case of Nilabati Behera v. State of Orissa and others reported in 1993 (2) SCC 476 and it was held as under:-
"It ,would, however, be appropriate to spell out clearly the principle on which the liability of the State arises in such cases for payment of compensation and the distinction between this liability and the liability in private law for payment of compensation in an action on tort. It may be mentioned straightaway that award of compensation in a proceeding under Article 32 by this court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. This is a distinction between the two remedies to be borne in mind which also indicates the basis on which compensation is awarded in such proceedings. We shall now refer to the earlier decisions of this Court as well as some other decisions before further discussion of this principle."
"17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right.
The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.
18. A useful discussion on this topic which brings out the distinction between the remedy in public law based on strict liability for violation of a fundamental right enabling award of compensation, to which the defence of sovereign immunity is inapplicable, and the private law remedy, wherein vicarious liability of the State in tort may arise, is to be found in Ratanlal & Dhirajlal's Law of Torts, 22nd Edition, 1992, by Justice G.P. Singh, at pages 44 to 48.
19.This view finds support from the, decisions of this Court in the Bhagalpur blinding cases: Kharti and Others (II) v. State of Bihar and Others, [1981] 1 S.C.C. 627 and Kharti and Other (TV) v. State of Bihar and Others, [1981] 2 S.C.C. 493, wherein it was said that the court is not helpless to grant relief in a case of violation of the right to life and personal liberty, and it should be prepared to forge new tools and devise new remedies' for the purpose of vindicating these precious fundamental rights. It was also indicated that the procedure suitable in the facts of the case must be adopted for conducting the inquiry, needed to ascertain-the necessary facts, for granting the relief, as the available mode of redress, for enforcement of the guaranteed fundamental rights. More recently in Union Carbide Corporation and Others v. Union of India and Others, [1991] 4 S.C.C. 584, Misra, C.J. stated that 'we have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future...... there is no reason why we should hesitate to evolve such principle of liability .... ." To the same effect are the observations of Venkatachaliah, J. (as he then was), who rendered the leading judgment in the Bhopal gas case, with regard to the court's power to grant relief.
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22. The above discussion indicates the principles on which the Court's power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah and certain further observations therein adverted to earlier, which may tend to minimize the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah and others in that line have to be understood and Kasturilal distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son." (underlined for emphasis) In Dr. Mehmood Nayyar Azam v. State of Chhattisgarh and others, JT 2012 (7) SC 178, the Supreme Court while dealing with the question of compensation in a case of torture and harassment in police custody, observed that when the matter is of public law remedy, the compensation can be allowed as it is an independent right available to an aggrieved party under private law. The interfacing appears to be between private law injuries adjudicated through public law remedy.
28. In Madhya Pradesh Electricity Board vs. Shail Kumari and others, AIR 2002 SC 551, the factual situation obtaining was that a live electric wire had snapped and was lying on a public road partially inundated with rain water when the deceased unwittingly rode over the wire on a bicycle which then twitched and snuffed his life instantaneously. The Supreme Court held:-
"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 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.
9. The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands v. Fletcher (1868 Law Reports (3) HL 330). Blackburn J., the author of the said rule had observed thus in the said decision:
"The rule of law is that the person who, for his own purpose, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape."
10. There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions barring one which is this. "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply". (vide Page 535 Winfield on Tort, 15th Edn.)
11. The rule of strict liability has been approved and followed in many subsequent decisions in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc. {1994(1) All England Law Reports (HL) 53}. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in Charan Lal Sahu v. Union of India and a Division Bench in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai had followed with approval the principle in Rylands v. Fletcher. By referring to the above two decisions a two Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum v. New India Assurance Co. Ltd. (2001) 2 SCC 9}.
29. In view of this, it is clear that the respondent/electricity department was negligent in maintaining the high tension line. Thus, the respondents are liable for payment of compensation.
30. The plea of an inevitable accident or an act of God advanced at the stage of hearing, cannot come to the aid of the opposite parties. While considering the question of inevitable accident or an act of God, it will be useful to reproduce a passage from the Law of Torts, 22nd Edition, by Justice G. P. Singh, which reads thus:
"All causes of inevitable accidents may be divided into two classes: (1) those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause; and (2) those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, non-feasance or mis-feasance, or in any other causes independent of the agency of natural forces. The terms 'act of God' is applicable to the former class."
31. An inevitable accident is an event which happens not only without the concurrence of the will of the man, but in spite of all efforts on his part to prevent it. It means, an accident physically unavoidable something which cannot be prevented by human skill or foresight. We have already referred to the report of the expert (Director) which indicates that the department was at fault for not taking safety measurements. Had the Board exercised proper care and supervision, it could have taken proper and prompt steps to cover the naked wire near human living or by taking other steps, the like situation would have been avoided. Thus, it cannot be said that the Uttar Pradesh State Electricity Board could not have prevented the incident by exercise of ordinary care, caution and proper supervision. Thus, it is not a case where the accident took place in spite of all efforts on the part of the Uttar Pradesh State Electricity Board to prevent it. In other words, it can be said that the accident was solely due to lack of care and caution on the part of the Uttar Pradesh State Electricity Board and its functionaries. Thus, it follows that the plea of an inevitable accident is wholly misconceived and cannot come to the aid of the opposite parties for getting out of its liability.
32. An 'act of God' is an inevitable or unavoidable accident without the intervention of the man; some casualty which the human foresight could not discern and from the consequence of which no human protection could be provided. This is not a case where the incident was due to unexpected operation of natural forces free from human intervention which no reasonable human foresight could be presumed to anticipate its occurrence or to prevent it. On the contrary, the material on record clearly indicates that but for indifference and inaction -- negligence of the Uttar Pradesh State Electricity Board in not making nuke wise steps near human living, the incident may not have occurred.
33. Thus, though under the Electricity Act 1910 and the Electricity Supply Act, 1948, transmission of electric energy may absolve the Uttar Pradesh State Electricity Board from liability for nuisance for the escape of electric energy but in a case of negligence or, we may say, due to lack of care, inasmuch as the Uttar Pradesh State Electricity Board fails to use all reasonable means to prevent such escape, the Uttar Pradesh State Electricity Board will be liable, for in view of the inherently dangerous nature of electricity, the standard of care will necessarily be very high and it would be for the Uttar Pradesh State Electricity Board to show that there was no negligence in a case like the one at hand.
34. As a reference was made to the case of Rylands v. Fletcher (186S-LR 3HL 330) (supra), the same may be dealt with briefly. In that case, the defendants had constructed a reservoir upon their land, in order to supply water to their mill. On the site that was chosen for the reservoir, there existed some shafts of a coal mine which was not in use. However, the passages also led to the adjoining mine which was owned by the plaintiff. This, however, was not discovered at the time of construction with the result that when the reservoir was filled, the water went down to the shaft and flooded the plaintiff's mine. Under these facts, the plaintiff instituted a suit for damages and succeeded. Dismissing the defendants' appeal, it was held by the House of Lords:
"The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings his land something which, though harmless while it remains there, will naturally do mischief if it escapes out of his land? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keep there, in order that it may not escape and damage his neighbours; but the question arises whether the duty which the law casts upon him under such circumstances is an absolute duty to keep it at his peril or is, ... merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more ...
We think that the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default; or, perhaps, that the escape was the consequence of 'vis major' or the act of God; but as nothing of this sort exists here, it is unnecessary to enquire what excuse would be sufficient."
35. In Suresh Kumar (supra), a Division Bench of the Kerala High Court while dealing with a case of compensation for injuries caused to a child on coming in contact with the 11 KV line live electric wire, upheld award of compensation for injuries sustained. The facts of the case were that a stay wire which supported the electric pole holding the 11 KV line had been cut two days prior to the incident by some workers of the defendant- Board. As a result, the pole gradually leaned and the wire sagged to a height of about one meter above the paddy field, the child came in contact with the wire resulting in severe injuries and burns resulting in amputation of his right arm below the elbow.
36. In the 11th Edition of Winfield and Jolowicz on Tort by Sweet and Maxwell, it has been observed by the learned authors at page 352 and at page 889 as under:-
"Electricity, is a dangerous thing and consequently the duty of those who own or control it is that laid down in Rylands v.
Fletcher ((1868) LR 3 HL 330). The liability for electricity is precisely the same as for gas.
"Liability for electricity is the same as for gas. It has been decided that the principle of Rylands v. Fletcher ((1868) LR 3 HL 330) applies to electricity, and consequently the owners of wires or cables through which an electric current is passing must keep them innocuous at their peril."
37. Failure of Electricity Board to maintain proper height of transmission wires was a per se negligent act and the doctrine of res ipsa loquitur was applicable. Merely putting up a notice or danger sign would not absolve the Board from its liability for injuries suffered or death caused. The principles were also applied in State of J&K v. Mohd. Iqbal, AIR 2007 J&K 1; Smt. Aunguri Devi vs. Haryana Vidyut Prasaran Nigam Ltd. (P&H) (DB), 2002 (2) RCR (Civil) 414; Mushtaq Ahmed v. State of J & K, AIR 2009 J&K 29; Ramesh Singh Pawar v. M.P.E.B. (M.P.) AIR 2005 M.P. 2; Paramjit Kaur v. State of Punjab (P&H) (DB), 2008 (4) RCR (Civil) 772; Dano Bai v. Punjab State, (P&H) (DB), 1997(1) PLR 414; Maya Rani Banik v. State of Tripura, (Gauhati) (DB), AIR 2005 Gauhati 64 and U.P. Power Corporation v. Bijendra Singh, AIR 2009 Allahabad 56 etc.
38. On a reading of the above case law the real question in this case which arises to our mind is whether the supplier of electricity can excuse himself by showing that the escape was owing to the petitioner's default. There is, however, little doubt on the other issues arising out of strict liability; burden of proof of escape of potentially dangerous thing causing injury wittingly or by surprise; standard of care required from Licensee which is circumspect statutorily under the Act and rules to do certain acts and things in the manner specified; jurisdiction of this court to award compensation in appropriate cases in writ jurisdiction and the connected issue of quantification of compensation so that it is neither under- compensation nor overcompensation etc.; that in the present case such factors tilt in favour of the injured and need not detain us. The claim made in the petition is an actionable claim and the case is an eminently fit one for grant of compensation in exercise of powers under Article 226 of the Constitution.
39. In the case of Manohar Lal Sobha Ram Gupta and others v. Madhya Pradesh Electricity Board, reported in 1975 ACJ 494, the Division Bench has held that the Electricity Board is a statutory Authority and as such the standard of care required is high one owing to the dangerous nature of electricity.
40. Learned counsel for the respondents has submitted that it was the petitioners responsible for the injuries and touching the electric high tension wires through any means was dangerous to the life and in this way it is a case of contributory negligence.
41. The principle of contributory negligence has been discussed in various cases by the Courts including in the case of Amul Ramchandra Gandhi v. Abhasbhai Kasambhai Diwan and others, reported in AIR 1979 Gujarat 14, the Division Bench has laid down the principles when the contributory negligence can be attributed to a child. It has been held as under:
"11. The principles which emerge on a review of the authorities may be thus summarized: A distinction must be necessarily drawn between children and adults when the question of contributory negligence arises for, a child cannot be expected to be as careful for his own safety as an adult. Where a child is of such an age as to be unable to fend for himself or to be naturally ignorant of danger, or where in doing an act which contributed to the accident, he was only following the instincts natural to his age and the circumstances, he is not guilty of contributory negligence. A child should be found guilty of contributory negligence only if it is established as a matter of fact on the evidence on record that he is of such an age and understanding as reasonably to be expected to take precautions for his own safety and the blame for the accident could be necessarily attached to him. In cases of road accidents, it must be borne in mind that a child is not possessed of the road sense or the experience of elders. Even if it transpires that he was taught road discipline either at home or at school and that, therefore, if he had bestowed some thought, he would have realized that it was his duty to take reasonable can for his own safety, still a normal child would not be held culpable in view, of his propensity to forget altogether what has been taught to him if something else is uppermost in his mind. A normal child is always momentarily forgetful of the perils of crossing and walking on a road, regretfully though, and under such circumstances, if he failed to notice even an on coming vehicle and got hurt by it, he cannot be held guilty of contributory negligence. In such a case, the question of the duty of the driver of the vehicle must be examined with greatest precision and unless the driver is in a position to show on establishment of, primary facts that he was driving the vehicle in such a manner that he could have brought it to standstill in case of emergency and that the accident was inevitable or unavoidable, the inference of his negligence and his alone must be raised almost as a matter of course."
42. In the case of The Kerala State Electricity Board Trivandrum v. Suresh Kumar, reported in AIR 1986 Kerala 72, the Division Bench has held that where the evidence in the case clearly show that the sagging was the consequence of sabotaging committed by the employees of the Board itself, the fact that sabotage was committed by the employees during the period of their strike cannot exonerate the Board from statutory duty cast upon it by provisions of the Act and Rules.
43. In the case of Smt. Angoori Devi and ors. v. Municipal Corporation of Delhi, reported in AIR 1988 Delhi 305, it was held that where a temporary electric connection by means of loose and naked wires had been taken in a wooden shack installed on the road side and as a result of such loose connections, the rain water which was collected around the shack and also the area around the shack got electrified and as a result thereof the boy died by way of electrocution, while crossing such area, the death of the boy was due to the gross negligence of the Board and its servants.
44. In the case of Sagar Chand and Anr. v. State of J & K and Anr., reported in AIR 1999 J & K 154, the learned Single Judge has held that when conductor of line which was just 3 feet above ground level remained unattended for 5 days, the negligence was on the part of lineman and the children were granted compensation. It has been held as under:-
"................ The rule of evidence accepted by all courts of law put the onus on the respondent to prove that the accident was not on account of negligence on its part where the circumstance leading to an accident is such that it is improbable that it would have occurred without the negligence of the respondent. The aforesaid rule of evidence is commonly known as "res ipsa loquitur". The said maxim applies in action for negligence in which the accident speaks for itself. In such cases, the claimant is not required to allege and prove any specific act or omission on the part of the respondent. If he proves the accident and the attending circumstances so as to make the aforesaid maxim applicable, it would be then for the respondent to establish that the accident happened due to some cause other than his/its negligence. The petitioner's son in this case was moving on a bicycle on the public road. His movement on the road on a bicycle was not the cause of his death. His death was due to electrocution having come in contact with the live electric wire. The electric wires have been carried supported by the electric poles, the maintenance of which is admittedly the duty of the Electricity Board. Any live wire getting detached from the pole is likely to cause loss of life. The responsibility of the Electricity Board is, therefore, all the more greater for its maintenance by replacement of wire, checking of the points where the wire has been joined or fixed to the pole and to take all precautions to use materials which would stand a stormy weather....... "
45. Now the question is whether the writ petition for such a claim is maintainable before this Court.
46. The position of law for awarding compensation in writ jurisdiction has been recognized by the Apex Court in Nilabati Behera vs. State of Orissa & Ors. 1993 (2) SCC 746 and in Dr. Mehmood Nayyar Azam Vs. State of Chhatisgarh JT 2012 (7) SC 178, wherein the principle enunciated is that the Supreme Court and the High Court being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution. Award of compensation in writ jurisdiction for contravention of human rights and fundamental freedoms is thus recognized by the Supreme Court.
47. Where victims whose fundamental rights under Article 21 of the Constitution are flagrantly infringed, the State can be called to repair the damage done by its officers to the fundamental rights of the aggrieved person, notwithstanding the right of the citizen to the remedy by way of civil suit or criminal proceedings. Hence, monetary relief can be awarded in writ jurisdiction to the aggrieved party for infringement of fundamental rights under Article 21 of the Constitution by awarding compensation and penalizing the wrong doer as also fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen/aggrieved person.
48. Thus, following the above dictum of law, this Court can grant compensation by moulding the relief in writ jurisdiction by way of penalizing the wrong doer and fixing the liability for the public wrong on the respondents who have failed to perform their public duties. In the view of the Supreme Court, the payment of compensation is not to be understood as a civil action for damages but of making "monetary amends" under Public law for wrong done for breach of public duty. As per the law laid down by the Apex Court, this is independent of the rights of the aggrieved party to claim compensation under private law in an action based on tort through a suit instituted in a court of competent jurisdiction or/and prosecution of the offender under the penal law. Thus, this claim for "exemplary damages" is maintainable before this Court under the above settled position of law and monetary compensation can be awarded to the victim."
49. Now the question is what would be the quantum of compensation payable towards the petitioners. The determination of quantum of compensation would evidently depend upon various factors including the age of the injured at the time of incident, nature of injuries/percentage of disabilities, nature of disabilities.
50. The person who brings the petition for compensation, must show that the respondent was negligent. For a person to be legally responsible for his action, it is essential to have evidence that he is at fault. For the purpose of such an action, although, there is no statutory definition of negligence, ordinarily, it would mean omission of duty caused either by omission to do something which a reasonable man guided upon those considerations, who ordinarily by reason of conduct of human affairs would do or be obligated to, or by doing something which a reasonable or prudent man would not do.
51. In Rathnashalvan v. State of Karnataka, reported in AIR 2007 SC 1064 the Supreme Court defined ,,rashness‟ as follows :-
"Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences."
52. In State of Karnataka v. Muralidhar, reported in AIR 2009 SC 1621, the Supreme Court defined word "negligence‟ as follows :
"Negligence means omission to do some-thing with reasonable and prudent means granted by the consideration which ordinarily regulate human affairs or doing something which prudent and a reasonable means guided by similar considerations would not do."
53. For assessment of compensation, life cannot be valued. Similarly no human being can put any monetary value of his limb or of any other human being. How does one assess the value of the loss of all faculties when some victim of an accident loses his moving mental faculties and lives in no motion, vegetative state. The courts can only grant compensation for the pecuniary and monetary loss caused and some other expenses, but no court can even attempt to grant compensation for loss of life or limb. Mainly pecuniary loss has to be assessed. Nominal damages for expenses, loss of consortium and conventional damages. Long expectation of life is connected with earning capacity. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused.
54. We have also to consider what would be just compensation. The Court has power to award the compensation above the amount claimed, so as to award compensation which was just. In this regard the following observations of the Supreme Court in State of Haryana vs. Jasbir Kaur reported in (2003) 7 SCC 484, are worth noting:-
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 'just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression 'just" denotes equitability, fairness and reasonableness, and non-arbitrary. if it is not so it cannot be just. (Helen C. Rebello v. Maharashtra SRTC (1999(1) SCC 90)"
55. It has been held by Supreme Court in Yadava Kumar Vs. Divisional Manager National Insurance Co. Ltd. Reported in (2010) 10 SCC 341 as under:
"14. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW-2 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome.
15. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a `just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of `just compensation' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field. Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (Mrs. Helen C. Rebello and others Vs. Maharashtra State Road Transport Corpn. and another - AIR 1998 SC 3191).
16. It was also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (Hardeo Kaur and others Vs. Rajasthan State Transport Corporation and another - (1992) 2 SCC 567).
17. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation."
56. The formula regarding income of the injured or deduction of 1/3rd which is to be expended on deceased is not applicable for the reasons that both the children are alive and are facing irony of fate and agony of life and they have to live and survive and to maintain their life. Thus, the principle of deduction of 1/3 or principle of calculation of monthly income is hardly applicable.
57. The calculation may be and should be on the basis of certain presumptions and calculation of presumptive income and in this way calculating annual income and multiplying with life expectancy and the year of age if they would have been in service or business. The person physically injured may recover both for his pecuniary loss and non-pecuniary loss. Pecuniary losses comprise -
i. The loss of earning and other gains which he would have been made had he not been injured and the medical and other expenses to which he is put as a result of injury.
Further, non-pecuniary losses may be divided into following three categories -
i. pain and suffering;
ii. loss of amenities of life, and iii. loss of expectation of life.
58. Learned counsel for the petitioners has relied upon the judgment of the High Court of Punjab and Haryana in Civil Writ Petition No.14046 of 2012 (O & M) - Raman vs. State of Haryana decided on 02.07.2017 and argued to pay the compensation in light of the above judgment. He has further relied upon another judgment i.e. Naval Kishore Kumar vs. State of Himanchal Pradesh and others reported in MANU/HP/0038/2015 in which approximately 1.25 Crores has been awarded to the petitioner in the similar matter. State of Himanchal Pradesh had preferred Civil Appeal No.1339 of 2017 (State of Himanchal Pradesh vs. Nawal Kishore) in which Hon'ble the Apex Court reduced the amount of compensation from Rs.1.25 Crores to Rs.90 lakhs considering the amount to be on higher side.
59. We have gone through the relevant provisions regarding assessment of compensation to be paid to the injured in the case of accident or electrocution in similar matters. As discussed, there are two formulas (1) Marginal Propensity to Save (MPS) and (2) Marginal Propensity to Consume (MPC). Meaning thereby, we can assess the income of the injured in case he is employed after a reasonable majority age and gain something in future and second formula relates to the method of calculation regarding minimum amount required to be expended to protect the life of the injured. Spending multiplier (also known as fiscal multiplier or simply the multiplier) represents the multiple by which GDP increases or decreases in response to an increase and decrease in government expenditures and investment. It is the reciprocal of the marginal propensity to save (MPS). Higher the MPS, lower the multiplier, and lower the MPS, higher the multiplier. The spending multiplier is closely related to the multiplier effect. Assume that households consume 80% of any increase in their income and that the government increases its expenditure by $20 billion. Any government expenditure is actually income of households in the form of wages, interest, rent and profit. Since MPC is 0.8, households will consume $16 billion of the increased income (= 0.8 × $20billion). The $16 billion increase in consumption will trigger second round of increase in incomes (for people associated with production of the consumed products and services) which in turn will trigger second round of consumption amounting to $12.8 billion (= 0.8 × 0.8 × $20 billion), and so on. The resulting effect is that the GDP increases by a multiple of initial increase in government expenditures. This multiple is the spending multiplier. A decrease in government expenditures decreases GDP by a multiple in the same fashion.
Formula Spending Multiplier = 1 = 1 MPS 1 − MPC Where, MPS stands for marginal propensity to save which is the percentage of any addition in income which households are going to save and MPC stands for marginal propensity to consume and it is the percentage of any addition in income which households are expected to consume.
By definition, MPS + MPC = 1 and MPS = 1 − MPC.
We are of the view that assessment in the light of income is a presumptive method and if it is taken into account then from minimum wages to highest paid salary may be available and it would be very difficult to assess at this juncture. The calculation in the light of minimum expenditure to be incurred on the maintenance of the life of the petitioners is a reasonable amount (minimum required in our view) is about Rs.10,000/- per month and calculating the annual expenditure, it comes to Rs.1,20,000/- per year and expectancy of life minimum further 50 years. The multiplier for calculation of compensation to be awarded to the petitioners would be 10,000 x 12 x 50 = 60,00,000/- each.
60. The petitioners are also entitled to standard damages towards the following heads -
I. Towards loss of companionship, life amenities and loss of pleasure.
II. Pain and suffering including mental distress, trauma, discomfort and inconvenience.
III. Expenditure to be incurred towards the attendant/nursing expenses.
IV. Expenditure to be incurred for securing artificial/robotic limbs and medical expenses.
61. Since the power corporation is working as an agent of the State of U.P. for providing electricity, we are of the view that the State of U.P. is jointly and severally liable for payment of compensation and for taking safety measures. It is also necessary in furtherance of the object to provide just compensation and take security measurements by the instrumentalities of the State.
62. In light of the above submissions and keeping in view the totality of the circumstances and balance to be struck between just compensation and other compensations, we are of the view that beside payment of a reasonable monetary compensation in the form of damages and other ancillaries, incidental matters, certain directions may also be given to the respondents regarding maintenance and safety measurements to be taken by the electricity department either to raise the height of the offending transmission line above the abadi for by means of any safety measurement, to make the high tension line safe and render them electrically harmless and take them beyond the reach of man and kids. We are of the view that following directions would sub-serve the purpose -
i. On the principle of joint and several liability, the respondents are jointly and severally liable for payment of compensation awarded in this petition.
ii. To secure the financial and monetary future of the minors Yash Pal Singh and Ankit Kumar Yadav, it is directed that the respondent U.P. Power Corporation Limited would pay 60 lakhs compensation immediately for loss of enjoyment of life, trauma suffered and to act as a guard against neglect and dependence on others, loss of future employability and the agony of future, paid and mental shock 50% of this amount will be deposited in a fixed deposit account in the name of the petitioners separately under joint guardianship of the parents with the petitioners (separately) in a nationalized bank preferably State Bank of India, Lucknow. The amount is directed to be deposited within two months from the receipt of certified copy of this order failing which the amount will carry 6% simple interest per annum till deposit in the bank. The amount awarded under this head will be available to the petitioners on attaining the age of majority.
iii. To meet out the running expenditure at present and daily expenses/attendant or family help or any labour, 50% of this amount for each petitioner is required to be invested in a nationalized bank, State Bank of India, Lucknow, to earn interest on long term fixed deposit. The interest so earned per month on this fixed deposit amount shall be credited to the Saving Bank Accounts of the petitioners with natural guardianship and credited to these accounts. The amount of interest so accrued against these fixed deposits shall automatically be transferred in the Saving Bank Accounts of the petitioners which are to be opened in the same branch in the name of the petitioners operated jointly by the parents and be paid on monthly basis to be used and expended for the care of the petitioners by the parents for educational expenses, nutritious food, cost of the attendants. Respondents are directed to pay this amount within two months from the date of receipt of a certified copy of this order failing which the amount will carry 6% per annum simple interest till it is deposited in the bank accounts.
iv. The Chairman/ Managing Director of the Department, with consultation and assistance of the Director General of Health Services, U.P., Lucknow, may also consider the case for immediate medical treatment of the minor petitioners to provide them artificial/robotic limb.
v. Respondents are directed to pay compensation of Rs.4,00,000/- (Four lakhs) immediately within two months to the natural guardians of each of the petitioners for trauma, mental shock, pain and agony caused to them.
vi. Each petitioner is entitled to have cost of litigation quantified to Rs.50,000/- (fifty thousands) payable to the guardians of the petitioners.
vii. It would be better to provide that since the Court has awarded a reasonable monetary compensation on the principles of both strict and vicarious liability and tortuous liability based on negligence, it is directed that no civil suit would lie claiming further compensation with regards to this incident in future in any Court.
viii. Respondents are directed to immediately make some safety measures regarding high tension lines transmitting above or near abadi to make it safe and render them electrically harmless to habitation and take them beyond the reach of man below or to device such other alternatives so as to bypass the colony like the present abadi land in the State of U.P. For the purpose, the Managing Director of the electricity department by constituting a team of experts, engineers of the department may obtain a report and take such remedial measures which are required to meet out and avoid such type of electrocution ix. The entitlement of compensation as provided above is individual (per petitioner) and both the petitioners are entitled for above compensation separately.
63. The writ petition is decided accordingly.
Dated: 24.04.2017.
A. Katiyar
(Sheo Kumar Singh-I, J.) (Shri Narayan Shukla, J.)