Jammu & Kashmir High Court
Gulshan Ara Wd/O Late Liaqat Ali vs State Of J&K Through Chief Secretary on 2 April, 2024
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
OWP No. 772/2004
Reserved on: 14.03.2024
Pronounced on: 02.04.2024
1. Gulshan Ara Wd/O Late Liaqat Ali, age 22 years
2. Kashif Ali S/O Late Liaqat Ali, age 3 years minor
through Petitioner No.1-mother, natural guardian
Both residents of Choudhary Nar (Rehtal)
Tehsil & District Rajouri. .....Petitioner(s)
Through :- Mr. M Tariq Mughal, Advocate
v/s
1. State of J&K through Chief Secretary,
J&K Govt. Civil Secretariat, Jammu.
2. Chief Engineer, M & RE, Jammu.
3. Divisional Engineer, Electricity Department
Parade Ground, Jammu. .....Respondent(s)
4. Director General of Police, J&K Govt.,
Jammu. ....Proforma Respondent
Through :- Mr. Dewakar Sharma, Dy AG for R-1 to 3
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. This writ petition was filed by the petitioner Gulshan Ara, on her own and on behalf of her minor son Kashif Ali petitioner No.2, seeking a writ of mandamus directing Respondents to pay a compensation of ₹25.35 lacs along with interest @ 12% per annum to the petitioner, on account of death of her husband-Liaqat Ali (hereinafter „deceased‟ for short), due to electrocution, when he came in contact with live fallen down electric wire, near TCP Nagrota on 03.12.2003 at about 5:00 AM, and met the fatal electrical accident.
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2. It is being asserted that deceased Liaqat Ali was serving in J&K Police as Selection Grade Constable and was posted on National Highway in Traffic Police; that on 03.12.2003 at about 5.00 AM, when husband of petitioner No.1 and father of petitioner no.2, namely, Liaqat Ali, while going to answer the call of nature towards field got electrocuted with a live wire of electricity, which was lying on a public way and received injuries/burns on the spot; that he was immediately rushed to Govt. Medical College Hospital Jammu, by the police and the people of the vicinity, where he was declared as dead, his post-mortem was conducted there and the case of death was reported as „due to shock as a result of electrocution by High Tension Live Wire; that regarding this incident, FIR No. 189/2003 came to be registered at Police Station Nagrota for the alleged negligence of the employees of the respondents-Department, in not maintaining electric lines, properly.
3. It is contended that the untimely tragic departure of the husband of the petitioner No.1 and father of petitioner No.2 only due to negligence in maintaining the proper electric line and this negligence, on the part of the employees of the respondents Department, has resulted in this electrical accident, in which, a young man of 29 years old having about 30 years more service, was ruthlessly charred to death, as the deceased had every possibility to reach to the higher ranks in the Department by earning promotions from time to time and at that time, as per salary certificate for the month of November, 2003 annexed with the petition, the deceased had monthly salary of Rs.7763/- per month. It is being asserted that as per the documents annexed with the petition, it is an admitted case of electrocution and quantum can be decided by this Court as per salary of the deceased and 3 OWP No. 772/2004 also keeping in view the age of the petitioners as well as of deceased Liaqat Ali and on the basis of the remaining service length of the deceased in police Department. Under the circumstances, the petitioners claiming to be his legal heirs, thus, seek compensation from the respondents for the death of deceased due to electrocution.
4. Pursuant to notice, respondents have filed objections, asserting therein that the present petition is not maintainable as none of the fundamental, statutory or legal rights of the petitioners have been violated; that in this matter disputed questions of law and facts are involved, which cannot be adjudicated by invoking the extra ordinary writ jurisdiction of this Court; that the respondents were not negligent at all as the death of the deceased- Liaqat Ali occurred because of his own negligence, especially, when the said area falling within the PHE Complex was a prohibited area and was not accessible to any person and the deceased at his own risk for unknown reasons entered into the PHE Complex and because of his own negligence, it resulted into the death of the deceased due to electrocution; that there was no willful negligence on the part of the answering respondents in maintaining the transmission line but because of the technical fault, that too at late hours resulted into the said accident, which thus makes the claim of the petitioners liable to be rejected, as such, the present writ petition deserves to be dismissed outrightly.
5. Mr. Mughal learned counsel for the petitioners has, vehemently, argued that the deceased, husband of petitioner No.1 and father of petitioner No.2, lost his life due to the negligent act attributable to Respondents, who failed to maintain the electric wires, as provided under the provisions of the Electricity Act and Rules framed thereunder and, thus, the State is 4 OWP No. 772/2004 under legal obligation to compensate the claimants as legal heirs of the deceased, due to the negligent acts of its official functionaries.In support of his contentions, learned counsel has placed reliance on the judgments of this Court in OWP No. 1/2013 titled "Kamlo Devi vs State of J&K & Ors", in OWP No.768/2009 titled "Shahnaza Akhter & Anr v. State of J&K & Ors" and in "Mst. Mala Begum vs State of J&K & Ors", passed on 19.03.2021, 20.04.2022 and 25.11.2022 respectively.
6. Mr. Dewakar Sharma, learned Dy AG appearing on behalf of the Respondents, in rebuttal, argued that the writ petition is not maintainable in view of the disputed questions of fact involved in the case as the deceased himself was a tortfeasor to have stepped into a prohibited area of PHE Department and that he was stated to have been electrocuted in that area, therefore, for his own fault of the deceased, his legal heirs cannot be compensated. He has further argued that the petitioners herein could have availed efficacious remedy of filing a civil suit, wherein and where-under, the facts with regard to the negligence could have been pleaded and proved but in a writ petition since the evidence cannot be recorded, it cannot be decided that whether the petitioners are entitled to compensation for the alleged negligence of the officials of the respondents-department. In support of his arguments he has relied upon the law laid down by the Apex Court in a case titled Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) & Ors. v. Sukamani Das & Anr ", reported as 1999 (7) SCC298.
7. Heard both the counsel, perused the record and considered the matter.
8. The question whether there is any limitation on the powers of the High Court for exercise of writ jurisdiction under Article 226 of the Constitution 5 OWP No. 772/2004 came up for discussion before the Apex Court in the case of "UP State Co- operative Land Development Bank Ltd. V. Chandra Bhan Dubey", (1999) 1 SCC 741, wherein the Court observed as under:
"It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any Government. Under clause (1) of Article 367 unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. "Person" under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporation or not. Constitution in not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to 6 OWP No. 772/2004 remedy a wrong or enforce a right. A party may not be allowed to by-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial 'bull in china shop' in the exercise of its jurisdiction under Article
226."
9. The case of the petitioners is that the deceased had lost his life as a result of electrocution as he had come in contact with a live wire when he had gone out in wee hours on 03.12.2003. In support of his contention, the petitioners have placed on record a copy of the FIR No. 189/2003 registered at Police Station Nagrota along with copy of charge sheet No. 35/2004 laid against the field officials of the respondents department, for the commission of offence punishable under section 304-A RPC, which reveals that the deceased had come in contact with a live electric wire lying on a common pathway and died and that the electrical accident had taken place due to the negligence of the officials such as lineman, JE, Foreman and AE etc. of the respondents-department, for not maintaining the electric lines properly. They have also placed on record a death certificate indicating that the deceased had died on 03.12.2003 at Nagrota Jammu. Besides a copy of the Postmortem Examination Report No. 231/2003 dated 03.12.2003 issued by the Department of Forensic Medicine, Government Medical College Hospital Jammu, indicating the alleged cause of death on spot, due to electrocution with HT Wire at TCP Nagrota at 5.00 AM on 03.12.2003, with opinion with regard to the cause of death as "shock as a result of electrocution by HT Live Wire" as alleged.
10. The respondents, in their parawise reply, have not denied the electrical accident and have only disputed that the deceased was himself responsible for his death and there was no negligence on the part of the officials of the respondents-department as the deceased had come in contact with the live 7 OWP No. 772/2004 wire in a prohibited PHE area, which was not accessible to any person. It has been specifically pleaded that there was no willful negligence on the part of the respondents‟ in maintaining 33 KV line and the snapping of the guard netting wire. The respondents thus have not denied the electrical accident wherein the life of the deceased had been lost, therefore, there is no disputed fact with regard to the electrical accident which requires to be proved by the petitioners, in an otherwise alternate efficacious remedy, in a civil suit, therefore, the writ petition, in such a factual situation where the death of the deceased in an electrical accident is admitted, maintainable.
11. From the foregoing enunciation of law on the subject, it is clear that the power conferred upon the High Court under Article 226 of the Constitution is of wide amplitude. The High Courts that have imposed upon themselves certain limitations in the matter of exercise of writ jurisdiction, otherwise, there is no limit to the jurisdiction of the High Court under Article 226 of the Constitution of India. One of the self-imposed limitations on the power of the High Court under Article 226 is that it would not go into intricate questions of fact which require leading of oral evidence but in the instant case, as already noted, the incident, which is subject matter of the writ petition, has been admitted by the respondents in their replies. Therefore, the contention of the respondents that the writ petition is not maintainable is without any merit.
12. It is the duty of the officials/officers of the Power Development Department to regularly check all electric connections, particularly vital installation, high tension lives and transformers. It is their statutory duty to ensure that no mishap takes place on account of lack of proper maintenance of these installations. Even if it is assumed that the deceased had, without 8 OWP No. 772/2004 information of the PHE Department entered its prohibited area, which was not accessible to any person, where the HT Live Wire fallen down, the fact that the same was not detected by the officials of the Power Development Department shows that there was no regular supervision of the electric installations on their part which was their statutory duty. The Supreme Court has, in the case of "M. P. Electricity Board v. Shall Kumar", AIR 2002 SC 551, while dealing with a similar situation, observed as under:-
"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."
13. Applying the above enunciation of law laid by the Hon‟ble Apex Court to the facts of the petitioners‟ case, it is clear that the deceased had lost his life due to negligence of the official functionaries of the respondents, in maintaining the electric lines safely and securely so as to avoid any such mishap. For such a negligence, the petitioners as legal heirs and dependents being wife and son of the deceased are entitled to be compensated for the resultant death of the deceased.
14. Having held that the officials of the Power Development Department were negligent in performance of their duties, which resulted into death of the 9 OWP No. 772/2004 deceased, the question that would arise is as to how the compensation due to the petitioners as legal heirs of the deceased, can be assessed. It is a settled law that in such matters, the Court may seek guidance from the principles governing assessment of compensation in motor accidents cases or fatal accidents. Baseline is that the amount assessed must be just compensation and not an excuse for undue enrichment. The guidelines for assessment of compensation in vehicular accidents cases have been laid down by a Constitution Bench of the Supreme Court in "National Insurance Company Ltd. v. Pranay Sethi", (2017) 16 SCC 680.
15. The Apex Court in this judgment has dealt in detail with regard to the fixation of multiplicand and the multiplier laid guidelines for increasing the income of the deceased having regard to the future prospect and with regard to reasonable figures on conventional heads namely, loss of estate, lose of consortium and funeral expenses with periodical enhancement @ 10% in every three years. Para 61 of the judgment being relevant for the convenience is extracted as under:-
"In view of the aforesaid analysis, we proceed to record our conclusions:-
i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%.10 OWP No. 772/2004
Actual salary should be read as actual salary less tax.
iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
vii) The age of the deceased should be the basis for applying the multiplier.
viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.
The aforesaid amounts should be enhanced at the rate of 10% in every three years".
16. The Apex Court after discussion of its earlier judgments passed in Sarla Verma, Rashma Kumari, Rajesh and Munna Lal Jain‟s cases, concluded that the deduction on personal living expenses of the deceased from his income is to be made as per the law laid down in Sarla Verma‟s judgment, which in case of married person provided that the deduction should be 1/3 rd where number of dependents family members is 2 to 3, 1/4 th where the dependents family members 4 to 6 and 1/5th where the dependents family members exceed six, however, in case of a bachelor, the norms was fixed @ 50% deduction on account of personal and living expenses with the exception, where the family of bachelor is larger and the dependent on the income of the deceased as in a case where he has a widowed mother and large number of younger non-earning siblings, his personal and living expenses may be restricted to 1/3rd and the contribution to the family will be taken as 2/3rd.
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17. This Constitution Bench after survey of the law laid down by the Apex Court in various cases including that of Sarla Verma‟s case laid down the guidelines with regard to application of multiplier and approved para 42 of the Sarla Verma‟s judgment which is extracted as under:-
"42. We therefore hold that the multiplier tobe used should be as mentioned in Column(4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
18. The deceased as per record was serving as Selection Grade Constable in Traffic Police with a total monthly salary in the amount of Rs. 7763/- as per certificate issued by the Superintendent of Police, Traffic Police Headquarters Ramban, vide No. ACCT/TFC/NHW/03-5260 dated 13.12.2003. The deceased at the time of his death was shown as 29 years of age, which has not been disputed by the other side.
19. Having regard to the fact that the deceased was having salaried income and his age was below 40 years, 50% of his actual salary, keeping in view future prospects, is to be added to determine loss of income. Monthly salary of Rs.7763/- of the deceased with addition of 50% comes to (7763+3881)=Rs.11644/-. Having regard to the marital status of the deceased as married and the number of dependents being wife and son as 2, the deduction on account of personal and his living expenses has to be 1/3rd. With 1/3rd deduction in view of personal living expenses of the deceased, the amount loss of income to the dependents comes to Rs.7763/- which on annually comes to Rs.93,156/-. This amount shall be used as 12 OWP No. 772/2004 multiplicand as loss of dependence to the claimants, an amount to have been contributed to them. Since the deceased was of the age of 29 years, the appropriate multiplier as determined in Sarla Verma case, 2009(6) SCC 121 and approved in Pranoy Sethi's case, in this age group shall be
17. With application of 17 as multiplier to the multiplicand of Rs.93,156/-, the total loss of dependency to the petitioners who happens to be dependents of the deceased, would come to an amount of (93,156x17) Rs.15,83,652/-. Besides this, the petitioners are also found entitled to Rs. 15,000/- for loss of estate, Rs.40,000/- for loss of consortium and Rs.15,000/- on account of funeral expenses.
20. Thus the petitioners are entitled to the following total compensation:-
Loss of dependency Rs.15,83,652/-
Loss of estate Rs.15,000/-
Loss of consortium Rs.40,000/-
Funeral expenses Rs.15,000/-
Total Rs.16,53,652/-
21. For the foregoing reasons and the observations made hereinabove, the petition is allowed, the petitioners are held entitled to a compensation of Rs.16,53,652/- along with simple interest @ 6% per annum from the date of filing of this petition till its realization. The said amount shall be payable to the petitioners by respondent Nos. 1 to 4 and upon its realization, it shall be paid to the petitioners in equal shares.
22. The petition is, accordingly, disposed of as allowed.
(MA Chowdhary) Judge JAMMU 02.04.2024 Vijay Whether the order is speaking: Yes Whether the order is reportable: Yes