Delhi District Court
Mrs. Saidun Nisa (Since Deceased) vs Bses on 9 September, 2015
IN THE COURT OF MS SUJATA KOHLI,
ADDITIONAL DISTRICT JUDGE, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS No.532/14/07
Unique ID No. 02401C0856922007
1.Mrs. Saidun Nisa (since deceased) Through his/her legal heirs 1A. Mumtaz Alam s/o late Sh. Sardar Hussain, 1B. Nikhat Jabi s/o late Sh. Sardar Hussain, 1C. Shakeel Ahemed s/o late Sh. Sardar Hussain, 1D. Wasim Ahmad s/o late Sh. Sardar Hussain, All resident of House of Dr. Saheed, Mohalla Katghar Pachpera, Kumharo Wali Gali, Moradabad, UP. .....Plaintiffs vs.
1. BSES, Rajdhani Power Ltd., Corporate Legal and Enforcement Cell, near Ahuja Park, Andrews Ganj, New Delhi.
2. Reliance General Insurance Co. Ltd., Ansal Building, 13th Floor, Nehru Place, New Delhi. .....Defendants Date of Institution of the Suit: 31.08.2007 Date of reserving judgment: 25.08.2015 Date of judgment: 09.09.2015 Suit for tort and damages of Rs.8,00,000/- along with interest at the rate of 18% and litigation expenses.
CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 1 of 25 JUDG MENT
1. Briefly stated the facts of the case are that plaintiff no.1 Ms.Saidun Nisha (since deceased) had filed the present suit for compensation on account of death of her young son by electricity. However, during the pendency of the suit, before justice could be done, she expired.
2. It is further stated that on 15.06.2007 deceased Sohaib Allam @ Guddu was passing from the street of his locality along with his friend namely Sh. Danish Ali s/o Sh. Sayed Shokat Hussain, at Zakir Nagar at about 3.15pm on foot and when he reached near the spot, he was caught by the electric current from an electric pole which stood at the corner of the street. He received a massive shock and fell on the road unconscious. After that Sh. Danish Ali immediately took him to the Holy Family Hospital, however, the doctors declared him as brought dead. The doctors of the Holy Family Hospital also informed the police of P.S. New Friends Colony. Thereafter, the post-mortem of the deceased was conducted at AIIMS.
3. It is alleged that the above said incident took place only due to negligence of BSES as at the abovesaid electric pole, CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 2 of 25 there were numerous wires tied carelessly on the above said pole. Some of the wires were not even insulated. During the rainy season there used to be lots of sparking from the particular pole. Earlier also two three incidents happened in which people got electrocuted.
4. It is further averred that residents of that locality complained several times about the leakage of electric current from that particular pole to the concerned officials, but they were always ignored and no heed was paid towards improving it.
5. It is alleged that deceased was working as a tailor at the Garment manufacturing unit at Okhla and was earning Rs. 5000/- per month, the deceased also used to work over time and earn Rs.3000/- to Rs.3500/- per month apart from his salary. It is the case of the plaintiff that the deceased was the sole bread earner of his family, as his father had already expired.
6. The plaintiffs have prayed for a decree in their favour and against the defendant for an amount of Rs.8,00,000/- along with interest @ 18% per annum from the date of the incident i.e. 15.06.2007 till the date of its realization.
CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 3 of 25
7. Defendant no.1 has filed written statement. In the preliminary objections, the defendant no.1 has stated that besides the electric PCC Pole of the defendant there is an iron pole erected unauthorisedly by the residents of the locality to facilitate electricity theft by putting un-insulated wires illegally, and the alleged accident, if any, is the result of the unauthorised and illegal activities of the residents and cannot be attributed to the defendant. It is stated that plaintiff has not approached this Court with clean hands, and even no document has been placed on record to show the alleged relationship between plaintiff and the deceased. The defendant no.1 has denied the averments of the plaint and sought dismissal of the suit of the plaintiff.
8. Defendant no.2 the Insurer has also filed its written statement, wherein they have raised preliminary objection that suit of the plaintiff is not maintainable. It is also stated that damages claimed by the plaintiff are highly exorbitant, illegal and without any basis. Defendant no.2 also denied the claim of the plaintiff and sought dismissal of the same.
9. Plaintiffs have filed replication to the written statements filed by the defendants reiterated and reaffirming therein the averments of the plaint.
CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 4 of 25
10.On the basis of pleadings of the parties, Ld. Predecessor of this Court vide order dated 08.12.2009 had framed the following issues:
(1)Whether the deceased Sohaib Allam @ Guddu died on electric shock/electrocution? OPP (2)Whether the defendant no.1/BSES, RPL was rash and negligent resulting in electric shock/electrocution of the deceased/ OPP (3)Whether the plaintiff is entitled to any damages/compensation from either of the defendants? OPP (4)Relief.
11.In order to prove its case the plaintiff no.1 had stepped into witness box as PW1 and tendered her affidavit in evidence as Ex.PW1/A and her examination in chief was recorded in part. However, thereafter, her examination-in-chief could not be concluded as during the pendency of the suit she had expired. Thereafter, plaintiff No.1A namely Mamtaj Alam appeared in the witness box as PW1 and tendered his affidavit Ex.PW1/A in evidence. PW2 HC Krishan Kumar from PS New Friends Colony also appeared in the witness box and proved summoned record including report u/s 174 CrPC, request for post mortem, death report, DD no.29 dated 15.06.2007, DD no.18 dated 15.06.2007, CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 5 of 25 application for preserving dead body, medical legal report, medical certificate of cause of death, statement of Bobby and other relevant documents as Ex.PW2/1 (23 pages). PW3 Sh. Hemant Singh Negi, Medical Record Clerk, Holly Family Hospital, Okhla Road, New Delhi brought the summoned record pertaining to the treatment given to Ms. Guddu and proved the same as Ex.PW3/1. PW4 Dr. Raghvendra Kumar from AIIMS proved copy of post mortem as Ex.PW2/1.
12.The defendants in their defence have examined D1W1 Sh. Shamimur Rehman, Senior Manager (O & M), Sarita Vihar Division, BSES and D2W1 Sh. Ashok Dave, Zonal Claims Manager (commercial), Reliance General Insurance Co. Ltd.
Issue No.1: Whether the deceased Sohaib Allam @ Guddu died on electric shock/electrocution? OPP
13.The first and foremost ingredient for entitlement to the claim to be established by the plaintiff is that the deceased Shoaib Alam @ Gudu died due to electric shock, secondly that the said shock was caused to him due to any negligence on part of the BSES.
14.As regards the factum of death of Shoaib Alam is CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 6 of 25 concerned, reference is required to be had to the medical documents proved on record i.e. Ex.PW2/1 (colly.) P-1 to P-23 onwards, which comprised the Report under Section 174 Cr.P.C., the Death Report, DD Report No.29 dated 15.6.2007, DD Report No.18 dated 15.6.2007, the medico- legal report from Holly Family Hospital on page 12, Post- mortem Report on page 16, detailed Death Report on page 22 & 23. Out of these, it is a medico-legal report and the post mortem report, which are most relevant and direct documents. These were all duly proved through the Record Clerk as well as the concerned doctor i.e. Dr.Ragvender Kumar, PW4. The said documents states the cause of death as being ante-mortem electrocution.
15.The deceased brought in the hospital was named Guddu and he was accompanied by Mohd. Alam, a friend and stated to be a resident of Moradabad and place of accident was described as Zakir Nagar,Okhla, Delhi. He was brought dead in casualty with an alleged history of electric shock at Zakir Nagar while walking at the road around 3:15 p.m. on 15.6.2007 followed by unconscious. The patient was declared brought dead.
16.As per the post-mortem report on page 16, the cause of death is stated as shock due to ante-mortem electrocution.
CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 7 of 25 PW4 doctor concerned who proved this report has not been cross examined by either defendant no.1 or by defendant no.2 about the cause of death. As such the cause of death i.e. electrocution stands admitted / accepted by the defendants.
17.Amongst the other observations, on this post mortem report, it has been specifically observed that ante-mortem injuries are also showing that there are electric burns on the various parts of the body of the deceased. Suffice it to state that immediate cause of death stands fully established by the unrebutted testimony / document of post mortem report proved by PW4 as being electric shock. Thus the factum of death and its immediate cause stands clearly established to be electrocution. Issue no.1 is decided in favour of the plaintiff and against the defendant.
Issue No.2: Whether the defendant no.1/BSES, RPL was rash and negligent resulting in electric shock/electrocution of the deceased/ OPP
18.The question whether defendant No.1 i.e. BSES had committed any rash and negligent act or omission which resulted into the said electric shock to the deceased, is being clearly established through the oral testimony of the own officer of defendant no.1 i.e. D1W1 Mr. Shamimur CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 8 of 25 Rehman.
19. No doubt PW1 has examined himself on the point of situation in which the incident occurred, but admittedly he was not in Delhi and not present at the spot, as such his testimony on this aspect is not even reliable. This matter rested more on the medical documents and police documents, and besides own admission of BSES itself.
20.Apart from above, even on the aspect of competence of D1W1 Sh. Shamimur Rehman to have deposed on behalf of defendant no.1 BSES, has not been established in as much as he could not prove that any board resolution was ever passed in his favour empowering him to depose on their behalf. Infact, he has not even stated in so many words that there was any resolution ever passed. Though he was relying upon an email received by him, but even that email was not proved in accordance with the provisions of Section 65 B of the Indian Evidence Act. He has been cross examined on this point as well and has not been able to produce any board resolution in his favour.
21.Mr. Rehman is stated to be working as Divisional Manager and he tendered his affidavit wherein he has mainly stated that besides the electric PCC pole of the defendant no.1 CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 9 of 25 BSES, the residents of locality had also erected the iron pole unauthorisedly in order to facilitate electric theft by putting uninsulated wires illegally. The accident in question was the result of unauthorised and illegal activities of the residents which cannot be attributed to the defendant No.1.
22. D1W1 has also referred and relied upon the photographs Ex.D1W1/P1 (collectively) filed by the plaintiff itself vide Para 3 of its affidavit. It has been mainly stated that the said photographs show that besides PCC pole there is steel tumbler pole and that electrocution is not possible from the PCC pole. The witness further states that the residents of the area had been using this steel tumbler pole to run their wire and cable for stealing electricity from the OH mains. According to this, the witness in his affidavit stated that there was no negligence on part of defendant no.1. He further states that in Para 4, no live wires were over tied carelessly on the PCC pole. He further states that there was no spark on the said pole and furthermore, no other person had received any electric shock from the said pole in the past and no such accident had ever taken place. The witness further goes on to state that there were no complaints from anyone about any leakage of electric current from the PCC pole of defendant no.1.
CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 10 of 25
23.This witness has miserably failed to face the cross examination on most of the aspects. For the time being, limited to the present issue and i.e. negligence on part of the BSES, this witness did not know whether there was any complaint regarding leakage of current through the said iron pole in the year 2007 or not and stated that he joined BSES only 2 years back. He did not even know when the iron pole next to PCC pole of BSES had been installed or when it was removed but only thing that the pole was not installed by BSES at any point of time.
24.The witness has clearly admitted during further cross examination that he is aware that the responsibility to check electricity theft is that of electricity company concerned. The witness tried to make this and covered this point by explaining that BSES had never received any complaint regarding any leakage of the current through said iron pole in 2007 or any other point of time apart from filing of this suit. BSES is not concerned that said iron pole is the next explanation given by this witness. The witness has strongly maintained that BSES had never received any complained of leakage of current through PCC pole shown in photographs Ex.D1W1/P1 (colly.) at page 231 at any point during 2007.
CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 11 of 25
25. But this witness failed to produce the electricity complaint register of the relevant period i.e. year 2007 inspite of the same. It was not the case that the register was destroyed but at one point, he has said that the BSES maintains only those records which are upto 5 years old and not later than that but then again, witness has admitted that it is correct that when he received summons of the case against BSES, the record of the relevant year would be preserved irrespective of its age.
26.In the present case, the BSES had already been served long ago i.e. in the year 2007 itself and as such the inference is that the record would not have been destroyed and would be available with the BSES. In these circumstances, non-production of electricity complaint register by BSES is taken as a deliberate non-production and leads to an adverse inference against BSES, to the effect that had the electricity complaint register of 2007 of the relevant area being produced, it would have gone against the defendant BSES, in as much as, it would have contained various complaints of similar nature regarding the said pole. This would show that complaints might have been there
27. The fact that this iron pole was admittedly there and had CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 12 of 25 been there for a considerable period of time and that it was within the full knowledge of BSES that electricity theft was going on in the area by the residents but BSES was shutting its eyes to the theft and not only failed to lead any complaint of theft but also failed to remove the said iron pole inspite of their full knowledge about it and its misuse going on.
28. Simply that the witness states that the steel /iron pole did not belong to BSES would not be any escape for the BSES. Once electricity authority was admittedly aware that there was an iron pole close to the PCC pole of BSES and for many years and once it was to their knowledge that people were stealing electricity there from through the iron pole got the count by the people BSES it was the duty of BSES to immediately get removed the said iron pole and stopped the theft and to have taken action against the residents who were in the electricity theft. Needless to say that electricity authority is sufficiently competent and infact duty bound to lodge complaints of theft of electricity under the relevant provisions of the Electricity Act. The BSES omitted to do so and this omission of BSES proved disastrous to the deceased of this case.
29.If there had been other accidents in the past, no material is CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 13 of 25 there on record but since the material was in possession of BSES which was in the form of complaints and since BSES avoided to produce the relevant complaint register, it is evident that the concerned official of BSES were acquiescing in the on going theft. Relevant portion of cross examination of D1W1 is reproduced as under:-
"I am not aware that the responsibility to check electricity theft is always that of electricity company concerned.
BSES never received any complaint with respect to leakage of current through the PCC poll shown in the photographs at point B to B in Ex.D1W1/P1 collectively on page 231 at any point of time during the year 2007. I am not brought the record of electricity complaints pertaining to Zakir Nagar, Okhla area of the year 2007. I do not even know whether the record of 2007 would be available in the office even or not.
I do not know who was the particular officer who was looking after the complaints relating to Zakir Nagar, okhla area in 2007.
It is correct that BSES has not filed on the court file, the complaint registered or its copy for the year 2007. It is wrong to suggest that as BSES deliberately has filed the same. If the records are available, I shall produce the same.
We maintain record up to only 5 years old. It is correct that when we received summons of CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 14 of 25 court case against BSES, the record of the relevant year would be preserve irrespective of its age.
I have not brought complaint register pertaining for the year 2007 for the locality of Zakir Nagar, okhla, New Delhi. I have not destroyed the record pertaining for the year 2007 for the locality of Zakir Nagar, Okhla, New Delhi but we are trying to search the same.
CQ.:-Have you brought any rules regarding preservation or destruction of old records in BSES?
Ans.: I have not brought any rules regarding preservation or destruction of old records as existing in the department. I am not even aware whether there is any such policy or rules in existence. (the witness had already been apprised and directed on the previous date to be ready with any such rules if they existed).
30. The photographs in question which were being relied upon by both the parties are showing PCC pole and very close to it is an iron pole and wires from PCC pole are going around the iron pole and they are all an entangled web.
31. The post mortem report showing the cause of death as electrocution, the other police documents i.e. proved through PW3 co-relates to the accident on the spot in CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 15 of 25 question, it is not even denied by BSES. Their only defense is that electric shock must have occurred through the iron pole and not through PCC pole. The testimony of D1W1 himself along with these photographs and all documents make it more than crystal clear that the electric shock caused to the deceased was because of blatant negligence or rather deliberate acquiescence and failure of duty on the part of the officials of BSES to have stopped the on going theft of electricity in the unauthorised manner. Had it been otherwise, and the iron pole in question being immediately removed upon coming to notice, the accident would have been easily avoided.
32.There can be no two opinions about it being the duty of the electricity authority to maintain their system on the public ways at their cost and vigilance. They are duty bound to ensure that no loose or hanging wire may be there for causing disaster for the users of the road. It is their duty to ensure that nobody steals electricity and particularly when their own witness had admitted that BSES has itself admitted in the WS, that an iron pole had been there, it is evident then, that even though it was in their knowledge that iron pole had been there and people had been using it to steal electricity from the PCC pole, the inaction on part of BSES speaks volumes about their gross negligence and CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 16 of 25 failure to do their duty, and needs no further discussion.
33. Though the initial onus to prove negligence lay upon the plaintiff, but once the cause of death was established being electrocution and as well as the BSES itself came up with the version of the iron pole and the on going theft of electricity in the area, the burden immediately shifted upon the BSES to establish whether they took care and caution and necessary action to ensure the safety of people around i.e. by regular inspections by removal of the iron pole, and by lodging complaints against the electricity thefts. Thus issue no.2 is also decided in favour of the plaintiff and against the defendant no.1.
34.Issue No.3:Whether the plaintiff is entitled to any damages/compensation from either of the defendants? OPP
35.The original plaintiff was Mrs. Saidun Nisa who is mother of the deceased. It was not disputed that she was the mother of the deceased, and it was not disputed that she was a widow. It is consequent upon the death of original plaintiff, that the sons substituted her as legal heirs. Therefore, it is to be appreciated that the original plaintiff was the widow mother who was seeking compensation for the death of her eldest son. She had been examined in CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 17 of 25 chief in part on her affidavit, and before she could be further examined in chief and could be cross examined, unfortunately she expired. Therefore, it is evident that her examination-in-chief cannot be read in evidence as it has not been put to the test of cross examination.
36.However, Sh. Mumtaz Alam who is son of the deceased plaintiff Ms.Saidun Nisha and brother of deceased Sohaib Allam @ Guddu has stated on affidavit on the aspect of the financial dependency that the deceased was working as tailor at the garment manufacturing unit at D-116/11, near SBI, Zakir Nagar West, Okhla, New Delhi, and that he was earning about Rs.5000/- per month. Deceased is also stated to be doing the work over time and as such used to earn Rs.3000/- to Rs.3500/- per month. Deceased was stated to be eldest in his family, and he was a man of simple means and he used to spend most of the salary on the basic needs of family, and he was sole bread earner of his family as his father had already expired .
37.Mr. M. Awasthi, Ld. Counsel for the defendant no. 2/Insurance Company had cross-examined this witness at length on the point of financial dependency. PW1 had admitted that he never resided with the deceased and apart from himself there were three brothers as also reflected in CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 18 of 25 the amended memo of parties. PW1 further admitted his employment in private firm for the last 3-4 years. Therefore, the statement of PW1 that deceased was the only bread earner member of his family was self-contradicted by the admission of PW1 that he himself was also employed in a private firm.
38.However, it still cannot be ignored that the deceased was the eldest member in the family.
39.No doubt PW1 admitted that his widow mother, when alive, and other family members, all had been staying with him at Muradabad. Deceased is stated to have been working in a factory, and staying there itself for the last seven to eight years. Witness has admitted that they did not have any document so show that the deceased was earning about Rs.5000/- per month or that he was earning overtime @ Rs.3000/- or Rs.3500/- per month as well in addition to the basic salary.
40.Even so, it has not been disputed even by the defendants that the deceased was working as a tailor in a garment manufacturing unit. Although suggestion has been put to witness that the deceased was not earning Rs.5000/- per month as salary or Rs.3000/- to Rs.3500/- as overtime.
CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 19 of 25
41.In this regard it is necessary to take note of the fact that even as per the minimum wages schedule, a tailor falls in the category of skilled worker and would be entitled to receive atleast Rs.15000/- per month as minimum wages as on date. Since employment of the deceased has not been disputed, the income has to be assessed as per the minimum wages schedule as prevalent in the year 2007. Minimum wages are revised from time to time, and would have continued to be revised during the entire life time of deceased. At the time of his death the deceased was only about 30 years of age, he was not married and this fact has not been disputed.
42.It may be admitted that family members of the deceased were not staying with him, it is not disputed that mother of the deceased was widow. It is also not disputed that the deceased was the eldest child, and it can be appreciated that it was he who must be taking care of his younger brothers and sisters. It is not uncommon rather the city of Delhi is being thronged by people from all other different States who come for livelihood and they mostly send most of their income to their villages or their home towns to help their family financially. In order to be considered as a dependent, it is not necessary that one has to be living CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 20 of 25 literary with that person in a house. If a member of a family goes to other city or country to make his earnings and particularly when he is single, he would normally be sending substantial portion of his income to his village or hometown while retaining some small portion of 1/3rd for his personal expenses.
43.Apart from this, not only that, the brothers and sisters being part of the same family, and even though PW1 was admittedly himself also doing some job, it appears that the entire family was living together and deceased had come to Delhi to make his earning from the profession of tailoring, and he must have been sending a substantial portion of his income to his family. It would be something like contribution of funds to run the entire household. Just because PW1 himself was also admittedly earning, would not imply that the deceased would not have been contributing to the expenses of the family. Family of the deceased is evidently a large family comprising as many as seven members initially including deceased himself and his mother. But after death of mother, still there were as many as six members including deceased himself.
44.It is a known fact that in any city or township going by the rising inflation rate, it is not possible that only one member CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 21 of 25 of family would earn and rest would depend without adding to the income. It is natural that a family as large as that of the plaintiffs' would have required funds from most of the members by way of contributions to run the family and no single member of the family could have run the family expenses.
45.Over and above, even if the personal dependency of the family members i.e. present plaintiffs and others is not taken into account, and instead going by the dependency of the widow mother of the deceased, it is that dependency also which can be appreciated, and once the compensation is determined accordingly, the dependency of the mother on the eldest son; the legal heirs would seem to be seeking only inheritance/ a share in that compensation.
46.Going both ways, plaintiffs/legal heirs cannot be denied compensation in the circumstances. Taking into account standard schedule of minimum wages as in the year 2007 for a skilled worker i.e. a tailor, it would not be less than Rs. 8000/- per month. Out of this Rs.8000/-, the deceased would be keeping at least Rs.3000/- with him for his expenses while living at Delhi and remaining Rs.5000/- he must had been sending to his mother. Going by the age of the deceased, and the fact that he was single, major CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 22 of 25 portion of his income would had gone to his mother. Taking into account the age of deceased, being only around 30 years of age, also seeing the medical record available, in the normal course, deceased would had continued to earn atleast for another 30 years. Multiplying monthly contribution sent by him i.e. Rs.5000/- X 12 X 30, that amount would come to Rs.18,00,000/- (Rupees eighteen lacs only) besides there would have been an increase in the income as minimum wages schedule are also revised in every one or two years.
47.Apart from financial dependency, loss of a son to the widow mother and the loss of brother to the brothers and sisters and infact loss of human life cannot be compensated in terms of money. But it is only to ameliorate the misery of the plaintiffs that the loss is being assessed at Rs. 5,00,000/- (Rupees five lacs only) as just and fair.
48.Though plaintiffs have restricted their claim only to Rs. 8,00,000/- (Rupees eight lacs only), no technicality can come in the way of justice, and justice demands that in case as the present one, taking into account all the factors, above discussed, a sum of Rs.23,00,000/- (Rupees twenty three lacs only) would be just and fair amount of compensation. However, the additional amount being CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 23 of 25 granted shall be subject to payment of additional court fees ad-volerum.
49.Accordingly, the plaintiffs are held entitled to a sum of Rs. 23,00,000/- (Rupees twenty three lacs only) in all as compensation to be shared by them in equal proportion. Since the liability is primary that of defendant no.1 BSES Rajdhani Power Limited, but defendant no.2 being the Insurer and having agreed to indemnify, the defendant no. 2 shall be liable to pay this amount of compensation by indemnifying defendant no.1. However, both the defendants would be jointly and severally liable to pay the compensation.
Issue no.3 is accordingly decided in favour of the plaintiff and against both the defendants.
Issue No.4: Relief
50.In view of the peculiar facts and circumstances, this Court is of the considered view that BSES Rajdhani Power Limited instead of paying compensation, has prolonged this case for years and years for as long as eight years, and during which even plaintiff lady i.e. mother of the deceased who was original claimant died, without getting any compensation, the defendant no.1 BSES Rajdhani Power Ltd should have paid infact ex-gratia compensation, CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 24 of 25 and thereafter, should have made efforts to pay the reasonable compensation instead of making claimant want and even till her death she could not get the compensation. Defendant no.1 BSES is burdened with additional costs which shall be borne by BSES on its own i.e. Rs.2,00,000/- (Rupees two lacs only).
51. Accordingly, the suit of the plaintiff is decreed in favour of the plaintiff and against both the defendants for a sum of Rs.23,00,000/- (Rupees twenty three lacs only) with costs throughout and also with special cost against defendant no. 1 to the extent of Rs.2,00,000/- (Rupees two lacs only), for which both the defendants shall be jointly and severally liable, along with interest pendentelite and future @ 18% per annum till the date of realization.
Accordingly, suit of the plaintiff is disposed of. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on the day of 09th September, 2015 (SUJATA KOHLI) Additional District Judge, Central District, Tis Hazari Courts, Delhi CS No.532/14/07 Mrs. Saidun Nisa vs. BSES Rajdhani Power Ltd. & Ors. page 25 of 25