Delhi District Court
Sunita vs Bses Rajdhani Ltd on 6 January, 2021
CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No. 160/2016 (16992/2016)
In the matter of:
1. Sunita
W/o Late Sh. Sailender Singh
2. Ankul Yadav
s/o Late Sh. Sailender Singh
3. Avnish Yadav
s/o Late Sh. Sailender Singh
4. Gaurav Yadav
s/o Late Sh. Sailender Singh
5. Kajal
d/o Late Sh. Sailender Singh
All R/o Main Road Bijwasan,
Kh. No. 336/5,
Opposite Delhi State Cooperative Bank,
New Delhi 110 065
(plaintiff no. 2 to 5 are minor, through their mother Sunita)
.....Plaintiffs
Versus
1. BSES Rajdhani Ltd.,
BSES Bhawan, Nehru Place,
New Delhi
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CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021
2. Assistant Vice President,
BSES Office, BSES Dispensary,
Andheriya Bagh, Opp. D1,
Vasant Kunj, New Delhi
3. New India Insurance Co. Ltd.,
Bombay Life Building,
N34, Connaught Circus,
New Delhi 110 001
....Respondents
Date of Institution of Suit : 14.05.2016
Date of reserving judgment : 06.01.2021
Date of pronouncement : 06.01.2021
Appearance:
(i) Sh. H.S. Mehra, Advocate Ld. Counsel for the plaintiff.
(ii) Sh. Vibhor Sharma & Ms. Alisha, Advocate, Learned
Counsel for the defendant nos. 1 & 2
SUIT FOR GRANT OF COMPENSATION TO THE LEGAL HEIRS OF
THE DECEASED FOR LOSS OCCASIONED UNDER SECTION 1A OF
THE FATAL ACCIDENTS ACT, 1855.
JUDGMENT:
1. The present suit has been filed by the plaintiffs against the defendants, seeking grant of compensation to the legal heirs of the deceased for loss occasioned under section 1A of the fatal accidents act, 1855.
2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiffs, for filing the present suit are as under:
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(i) It has been averred that Sh. Sailender Singh s/o Sh. Naulakh Singh (hereinafter referred to as the deceased), on 24.04.2016 at about 12.16 pm, was doing the plumbing work along with his helper Rama r/o Dundahera, Farm House as per the directions of Sh.
Sudesh Kumar s/o Sh. Hoshiar Singh, Sherawali Mata Mandi, Near Railway Station, Bijwasan, New Delhi and there was live electric current in the wall of Durga Mandir (hereinafter referred to as the Mandir).
(ii) It has been averred that as soon as the plaintiff started plumbing work at the Mandir he received a severe electrocution and he was taken to Metro Hospital, Palam Vihar, Gurgaon by the wife of said Sh. Sudesh, where he was declared brought dead.
(iii) It is averred that deceased was electrocuted as a result whereof he died instantaneous on the spot. The deceased was not aware of the electric current in the wall of the Mandir nor he was informed by any person that there was electric current in the grill of Mandir. The deceased received electrocution from the electricity current flowing in the grill on account of the negligence of the defendants. It is averred that the cause of the death of the deceased was the negligence and carelessness of the defendants.
(iii) It has been further averred that the deceased was a plumber by profession and a contractor and many persons were working under him as helpers. The defendants are jointly and severally liable to pay the compensation to the plaintiffs. It has also been averred that the Page No. 3 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 deceased was aged about 32 years and was earning about Rs. 35,000/ per month as a plumbing contractor and the deceased was the only hope for the plaintiffs as they were looked after by deceased only.
(iv) It is averred that after the death of deceased there is no one to take care of the plaintiffs. It has also been submitted that the income of the deceased was increasing within the passage of time and had the deceased not been met with this fatal accident his income would have multiplied many times. It has been prayed that the compensation of Rs. 50,00,000/ be awarded to them. Hence, the present petition/suit.
3. After service of summons for settlement of issues were issued to the defendants.
4. Defendant no. 1, NCT of Delhi filed the written statement, however, the contents of the same have not been reproduced as the name of defendant no. 1 has already been deleted from the array of parties vide order dated 19.09.2018 passed by ld. predecessor of this court.
5. Defendant no. 4, The New India Insurance Ltd.
(defendant no. 3 as per amended memo of parties) filed the written statement, interalia stating therein that the deceased himself was negligent as he was not wearing any safety kits at the time of alleged incident. It has also been stated that the contract of plumbing work was assigned to the deceased by the Mandir, therefore, the Mandir is Page No. 4 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 liable for any compensation, if so awarded. It has also been stated that BSES has conducted the investigation and no leakage was found in the wire installed at the spot and there was no possibility of electrocution. It has also been stated that the deceased in connivance with the Mandir was doing plumbing work unauthorisedly and would have touched the naked wire, which resulted in the electrocution. It has been averred that the defendant nos. 2 & 3 (now defendant nos. 1 & 2) is insured with the defendant no. 4 (now defendant no. 3) vide policy No. 31030036150600000001 for the period w.e.f. 19.12.2015 to 31.03.2016 and as such liability is as per terms and conditions of the policy.
6. Perusal of the record reveals that vide order dated 19.09.2018, amended memo of parties is directed to be filed which was filed on 12.12.2018. Therefore, in the judgment the plaintiff nos. 1 to 5 are hereinafter referred to as the "plaintiffs", the BSES is hereinafter referred to as "defendant nos. 1 & 2" and the New India Assurance Co. Ltd., is hereinafter referred to as "defendant nos. 3".
7. Written statement has also been filed on behalf of defendant nos.1 & 2, interalia submitting that the plaint filed by plaintiffs is false and vexatious and are levelling false allegations against defendant nos. 1 & 2 by suppressing material and correct facts. The present suit is bad for misjoinder of the Mandir as a party. The deceased died while he was doing plumbing work at the Mandir. The Mandir has raised a new construction of low rise boundary wall at its roof and iron railing has been fixed thereon at its premises. When this new construction at the roof of the Mandir was not in existence, a Page No. 5 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 single core LV mains wire of 25 sq. mm was connected between two electric poles which was passing above the Mandir. However, as soon as the new construction was raised, the said wire started touching the railing, there was no leakage in the said cable which could raise the threat of electrocution at any level. It is also submitted that there is no passage or staircase to climb the roof of the Mandir and one has to take alternate way to first climb an adjacent platform from where the person has to somehow manage to climb the roof of the Mandir. The entire construction of the boundary wall and iron railing on the roof of the Mandir was executed by climbing the roof and no one has got electric shock while erecting the said construction.
8. It has been submitted that the said LV Main wire was lifted above the roof by the deceased and put on the iron railing so as to clear the space for his plumbing work. The site of incident has been minutely inspected by the officials of defendant nos. 1 & 2 on 24.02.2016, who after verification, observed that there was no leakage of electric current and there is no possibility of electrocution from that portion. There might be a possibility that due to shifting of LV Main line from its original place to the roof railing of the new construction of the Mandir by the deceased, the leakage of electric current might have traveled through the earth wire which probably would have been connected through a naked service line resulting into electrocution.
9. It is submitted that this is flaw on the part of the Mandir to shift the LV Main line from its place without any authorisation and permission of defendant nos. 1 & 2 and, if any, such situation had occurred the Mandir should have brought the said fact in the Page No. 6 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 knowledge of defendant nos. 1 & 2 so that necessary measures be taken to shift the LV main line. The Mandir management absolutely ignored the basic requirement and allowed the deceased to lift the LC main line above the new construction/iron railing and as such the management of the Mandir is in absolute negligence and plaintiffs should have impleaded the management of the said as a necessary party to the suit.
10. It is submitted that the accident in question occurred on 24.02.2016, and on the same day officials of defendant nos.1 & 2 along with a lineman inspected the spot and after proper verification filed a report that there is no leakage in the electric wire installed in the Mandir which might have led to electrocution, as alleged by plaintiffs. On inquiry from the neighbors, who brought the deceased down from the roof, it was revealed that those neighbours had also touched the spot but they did not feel any shock on account of alleged leakage of electric current at the spot of incident. The lineman of defendant nos.1 & 2 also cross verified that there was no leakage in electric wire at the spot, therefore, no negligence on the part of defendant nos.1 & 2 could be attributed for the death of the deceased.
11. The defendant no.2 on 24.02.2016 has immediately sent notices to the managmeent of the Mandir addressed to Pandit Shankar Jha for clearance of buildings, structures, balconies/verandah/roofs from electricity mains/installation as well as to the nearby occupants of the Mandir on same lines, however, no positive steps had been taken by them to this effect. At the time of incident, the Mandir had no legal electricity connection and the Mandir Page No. 7 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 led by the priest were involved in the theft of electricity. It is submitted that no documentary proof for income of deceased is placed on record to substantiate that he was earning Rs.35,000/ p.m. at the time of his death. It is denied that the deceased died due to electrocution in as much as the current was running on the walls of the Mandir and the grill and there is no negligence at the end of defendant nos.1 & 2. It is, therefore, prayed that suit of the plaintiffs may be dismissed with heavy cost.
12. Replication has been filed by counsel for the plaintiff wherein all the allegations made by the defendants have been denied and the contents of the plaint are reiterated.
13. Based on the pleadings of the parties, following issues were framed by my ld. predecessor on 19.09.2018 :
i) Whether Sailender Singh, the deceased succumbed due to electrocution, owing to negligence on the part of defendant no.2BSES and defendant no.3Assistant Vice President of BSES, as claimed? OPP
ii) In case issue no.1 is decided in favour of plaintiffs, whether the plaintiffs/petitioners are entitled to compensation amounting to Rs.50 lacs, as claimed. If yes from whom? OPP
iii) In case issue no.2 is decided in favour of the plaintiffs, whether the plaintiffs are entitled to interest, if so at what rate and for which period? OPP
iv) Relief.Page No. 8 of 30
CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021
14. Plaintiff was then called upon to substantiate their case by leading evidence. Plaintiff has examined herself as PW1 and has proved on record following documents:
1. Copy of school certificate of deceased is Ex. PW1/1,
2. Copy of the PAN card of deceased is Ex. PW1/2,
3. Copy of election card of deceased is Ex. PW1/3,
4. Death certificate of deceased is Ex. PW1/4,
5. Copy of the Aadhar Card of deceased is Ex. PW1/5,
6. Copy of election card of the deceased is Ex. PW1/6,
7. Copy of PAN Card of the deceased is Ex. PW1/8,
8. Copy of FIR and postmortem report are marked Mark A & B,
15. Plaintiff has also examined PW2 Sh. Ramashish Shah @ Rama who has deposed on the lines of the PW1. Plaitniff has also examined PW3 Sh. Satpal Singh Dy. Electrical Inspector who has proved on record the report Ex. PW3/1. Thereafter, plaintiffs evidence was closed and matter was listed for recording of defendants evidence.
16. Sh. Arvind Kumar Yadav, Asst. Vide President, Div. Business, has been examined as DW1 who has proved on record the following documents :
1. Notice dated 24.02.2016 issued to Pandit Shakar Jha is Ex.
DW1/A,
2. Notice dated 24.02.2016 issued to Karambir is Ex. DW1/B
3. Copy of the postal receipts for delivery of notice is Ex.
DW1/C,
4. The compact disk containing voice recording/statement of the local residents is Ex. DW1/D
5. The compact disk containing photographs of the temple and adjoining area is Ex. DW1/D1,
6. The certificate under Section 65B (4)(c) of Indian Evidence Act with respect to the CDs are Ex. DW1/D2, Page No. 9 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021
17. Defendant has also examined one Sh. Rajesh Kumar Rekhi, DGM Safety, as DW2 who has proved on record the accident inquiry report dated 20.02.2017 as Ex. DW2/A.
18. Defendant has also examined one Sh. Sailabh Singh Manager from BSES as DW3 who has deposed on the affidavit Ex. DW3/A and has proved on record the NOC issued by BSES to Shankar, user of electricity connection, Mata Mandir as Ex. DW3/C.
19. Defendant has also examined one Sh. Mahesh Kumar, DW4 who had conducted the videography and proved on record the CD containing videography as Ex. DW4/A and the certificate u/s 65 B of Indian Evidence Act as Ex. DW4/B.
20. Defendant has also examined one Ms. Monika Sharma, Authorised Representative/Legal Retainer of the BSES as DW5, who is the GPA holder and has proved on record GPA as Ex. DW5/A.
21. I have heard ld. counsels for the parties and with their assistance gone through the records of the case.
22. My issue wise findings are as under: Issue no. 1
23. The onus to prove this issue is on the plaintiffs. It is the contention of the counsel for the defendant no.1 & 2 that the deceased died on account of the negligence of the Mandir in as much as defendants immediately rushed to site on 24.02.20216 after getting information of fatal accident and conducted inspection of the pole and Page No. 10 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 it transpired that the deceased died on account of negligence of the Mandir.
24. It is further the contention of ld. Counsel for the defendant that the Mandir was involved in the theft of electricity and the Mandir was booked of theft of electricity and accordingly they got compounded the said offence by payment of penalty.
25. It is further the contention of ld. Counsel for the defendant nos. 1 & 2 that the Mandir raised an additional floor at its premises as a result of which, a single core LV main wire of 25 sq. mm. was connecting the two poles installed in the vicinity, which was passing above the Mandir, started touching the building of the Mandir. The Mandir was involved in the theft of electricity and the Mandir was booked of theft of electricity and accordingly they got compounded the said offence by payment of penalty and when this fact came to the knowledge of defendant nos. 1 & 2 on 24.02.2016, immediately the action was taken against the Mandir by way of issuance of notice to the Mandir.
26. It is further the contention of ld. Counsel for the defendant nos. 1 & 2 that the lineman inspected the spot on 24.02.2016 and found no leakage in the electricity wire installed over the Mandir which might have led to electrocution of the deceased. The defendant nos. 1 & 2 got prepared the CD Ex. DW1/D, wherein the voices of the neighbours, who had brought down the deceased and thereafter, taken to the hospital, has been recorded in and such neighbours received no such electric shock at the spot of incident. Even the accidental inquiry report Ex. DW2/A report exonerates the defendant nos. 1 & 2 from any negligence.
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27. The relevant portion of the said report is as under :
"...The statement of concerned officers/officials have been gone through. The facts also noted by AEC members during site inspection.
As per medical report dated 25.02.2016, it is mentioned that electric joule burn injury of size 1cm x 2cm present between left index finger and thumb. From medical report, it is observed that the deceased might have gripped some wire having leakage current.
During site inspection, it was observed that the mandir on the roof of which accident occurred did not have electricity connection. However, it had lose temporary wiring. A single core cable of size 25 sq mm. tied with the GI earth wire was hanging between 2 poles and touching on Iron railing over the roof of the mandir. The cable was tested through mega for its leakage after charging it from poll and found no leakage in the said cable by AEC members during site inspection.
There may be 2 possibilities:
1. One plumber might had tried to use electricity through temporary wiring of mandir for doing some drilling work or
2. he had disturbed the GI wire tied with single core cable by gripping it which might have swag on the polls and got electric charge from the nearby conductor.
It is revealed by the DGM (O&M) Vasant Kunj (Rural) that the mandir was stealing electricity and after accident, he was booked for theft of electricity. This implies possibility (i) as described above AEC members tried to trace the exact cause of accident. However, no exact cause would be ascertained in view of the position explained above.
Under the circumstances and after observing the facts during site inspection, no evidence found to prove that this unfortunate accident had caused due to negligence of any officials / officers of BSES Rajdhani Power Ltd."
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28. It may be noted that the deceased died due to electrocution. The plaintiffs, who are legal heirs of the deceased have pleaded and led evidence to prove that the incident had occurred due to the negligence of defendants as the loose wire connecting the electric wire was touching the grill at the top floor of the Mandir, the deceased was working as a plumber in the Mandir and the deceased died on account of the negligence of the defendants, who were supposed to take care of the maintenance of the overhead wires hanging over the roof of the Mandir and supply of electricity through the electric pole installed near the Mandir.
29. The onus to prove this fact was upon the plaintiffs that the death of deceased was caused due to negligence on the part of defendants. In order to discharge, the plaintiff no. 1 who is wife of deceased had examined herself as PW1 and has reiterated the aforesaid averments in the plaint, in her examination in chief. PW2 is the eye witness to the incident in which the deceased lost his life and PW2 testified that as soon as the deceased started the plumbing work at the roof of the top floor of Mandir, he got electric shock and was taken to the hospital, where he was declared dead. In cross examination he admitted that the deceased was a plumber and doing the work of plumbing adjacent to the railing of the roof of the Mandir. PW2 raised the alarm and people gathered and tried to separate the deceased from railing with a wooden piece and at the time of incident the deceased and PW2 were not using any electric motor for plumbing work.
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30. In addition to it, it may be relevant to mention here that the defendants have not disputed the death of the deceased by electrocution and defendants have in the pleadings raised accusing fingers against the Mandir so far as negligence is attributable which resulted in the death of the deceased.
31. There is no dispute at all regarding the death and electrocution as the cause of death of the deceased and the only issue remained to be adjudicated upon is regarding liability of a particular defendant for negligence along with compensation/ damages.
32. In the written statement the defendants has simplicitor denied the contention in the plaint mentioning that there was no negligence of the defendants. The defendants admitted in one way or the other the cause of death of the deceased as mentioned in the plaint and proved from the testimonies of PWs as well as from the death certificate Ex. PW1/2 and original accident inquiry report Ex. DW2/A. The death of the deceased by electrocution is not disputed by the defendants and infact no question was asked during the cross examination of witnesses in this respect.
33. It may also be relevant to mention here that DW1 Sh. Arvind Kumar Yadav has tried to wriggle out of the negligence attributable to the defendants by relying upon the joint inspection report, who inspected the spot in the Mandir testified that he had inspected the spot on 25.02.2016, however, no report was prepared on 25.02.2016 and the report was prepared lateron. It may be noted Page No. 14 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 that on the basis of this accident inquiry report, the defendant tried to wriggle out from negligence attributed to the defendants in as much as the said negligence is writ large in the inspection report prepared and proved by PW3 Sh. Satpal Singh, the electric inspector who visited the spot of incident in the Mandir on 02.03.2016.
34. It is relevant to note that PW3 has testified that the information of incident should have been given within 24 hours. PW3 is not aware about the fact that there was any illegal abstraction of electricity in the Mandir. The live electric wire rested on the metallic cable and the insulation of the cable was found damaged/burn out. The live electric wire was resting in the grill which was upto the height of both the poles installed on the left and right side of the said plot of the Mandir. It may be relevant to mention here that PW3 in his report Ex. PW3 has given the following findings :
"At the time of inspection it was observed that two nos. LT Service cable along with one no. earth wire (metallic wire) were found passing over the roof of the said mandir. These are service cable and earth wire were resting on the metallic railing, fixed on the roof top of the said mandir. On physical examination it was observed that both the cable were in semi burnt condition. Flash over/spark marks were observed on the metallic railing, a fire and as well as on the service cable. The insulation resistance between the electrical installation of the service cable and earth wire was tested with 500 volts insulation tester (megger) and complete leakage of the current was observed. Further it was observed that the earth wire (which was running along with service cable had not been connected with main earth which was running along with main LT lines) At the time of inspection the following provisions of the Central Electricity Authority (Measures relating to Safety and Electricity Supply) Regulations, 2010 had not been found Page No. 15 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 complied with by the staff of BSES Rajdhani Power Ltd:
1. The service cable installed by the supplier over the roof top of the said Mandir had not been protected/maintained in safe condition as insulation of the said cable was found damaged in contravention of the provisions of the regulations 13(2) of the said Regulation.
2. The metallic wire used for supporting the said LT service cable was not efficiently earthed in contravention of provision of Regulation 72(2) of the said Regulations."
35. A conjoint reading of both the reports, as discussed above depicts that there was negligence on the part of the defendant no. 1 & 2 in as much as violation of the provision of electricity Act have been found to be there at the spot by the electricity Inspector/PW3 and the said negligence is further fortified by the fact that after the incident defendant nos. 1 & 2 issued notice to the Mandir on the same day through Ex. DW1/A, whereby the Mandir was informed to have contravened certain provisions of the electricity Act and rules made thereunder, meaning thereby that if the lineman of defendant nos. 1 & 2 had taken precaution by taking necessary action against Mandir for such violation of rules and regulations as detailed in Ex, DW1/A, the deceased would not have died of electrocution.
36. It may be noted that being civil suit for damage, this suit is to be decided on the basis of preponderance of probabilities in as much as the facts required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case viz. a viz. a civil suit, indisputably is different. Whereas, in the criminal case, the Page No. 16 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, however, in a civil suit, preponderance of probabilities will serve the purpose for obtaining a decree.
37. In this regard, it may be noted that in the facts and circumstance of the case the doctrine of res ipsa loquitur would also apply with force in as much as the said maxim is based on common sense and its purpose is to do the justice when the facts bearing on the causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within knowledge of the defendant. The plaintiff merely supposed to prove a result, not any particular act or omission producing the result. If the result in the circumstances, in which plaintiff proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply and the plaintiff will be entitled to succeed unless the defendant by way of evidence rebuts that probability.
38. At this stage it is relevant to impute strict liability upon the defendants as 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 Reporter (3) HL330. The rule of strict liability was approved and followed in India in several decisions and has been reiterated in the catena of judgments. The sum and substance of this principle is that due to the action or inaction of the State or its officers, the fundamental rights of a citizen are infringed then the liability of the State, its officials and its instrumental also is Page No. 17 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 strict. Claims raised for compensation in such a case is not a private law claim of damages, under which the damages recoverable are large. Claim made for compensation in public law for compensating the claimants for deprivation of life and public liberty which has nothing to do with a claim in a private law claim in tort in ordinary civil suit. Even if all the safety measures had 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 undertaking. 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 and it differs from the liability which arise on account of negligence i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions.
39. It may be noted that though not quoted, reliance is placed on M.P. Electricity Board v. Shail Kumari (2002) 2 SCC 162 and Union of India v. Prabhakaran Vijay Kumar (2008) 9 SCC 527, wherein, it was reiterated that the rule of strict liability as laid down by Hon'ble Supreme Court in M.C. Mehta Case (1987) 1 SCC 395 is not subject to any exceptions as laid down in the judgment of Rylands v. Flethcher(supra) and in Shail Kumar (supra) it has been observed in para no. 8 & 12 as under :
"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 Page No. 18 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 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......
xxxxx
12. In M.C. Mehta v. Union of India this Court has gone even beyond the rule of strict liability by holding that "where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher."
40. As far as the contention of the counsel for defendant no. 2 that as per regulations 60 & 61 it was the duty of the Mandir to take precautions and maintain clearance horizontal and vertical distance of electric wires from the Mandir is concerned, suffice is to say that the Rule 70 & 80 of the Indian Electricity Regulations 1956 read with Section 53 & 68 of the Electricity Act, 2003 provides for maintaining vertical and horizontal distance between the buildings and voltage lines/service laws of the Electricity & Regulation, 1956. These regulations provides for that minimum vertical and horizontal clearances are required as per the legal parameters and regulations. It was the duty of the defendant nos. 1 & 2 to get compliance of the said regulations from the Mandir which defendant nos. 1 & 2 failed to do so.
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41. It may be relevant to note here that a bare perusal of the deposition of witnesses depicts that the electricity Inspector as per the electricity rules visited the site being a statutory requirement and, therefore, an adverse inference is drawn against defendant nos. 1 & 2 that on account of the negligence the electrocution of the deceased happened. The failure of defendant nos. 1 & 2 in not getting the site inspected by the electricity Inspector also lead to concluded that the defendant nos. 1 & 2 had failed to produce any documents on record even to infer that the electric pole wires hanging over the roof of the Mandir was maintained as per the rules and regulations made in this regard and further the defendant nos.1 & 2 failed to prove that any action was taken against any person including the Mandir for raising unauthorized construction in the Mandir in as much as the notice in this regard was issued to the Mandir after the death of the deceased.
42. Applying the principle of res ipsa loquitur and strict liability, it was not for the plaintiffs to prove that the defendants were negligent rather it was the defendants to prove that defendants were not negligent and has taken every precaution for safety of all. The factum of death of deceased on account of electrocution as a result of negligence of defendants is proved, the negligence is the breach of the duty caused by omission to do something which a reasonable man, guided by those considerations, which ordinary regulates the conduct of human affairs would do or doing something which a prudent or reasonable man would not do.
43. It is proved that the responsibility of the maintenance and upkeep of the electric wires at site was upon the defendant no. 1 & 2.
Page No. 20 of 30CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 The primary liability to compensate the sufferer is that of the supplier of the electricity authorities manning such dangerous commodities, who has extra duty to chalk out measures to prevent such major mis happening. 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 injuries suffered by any other person, irrespective or any negligence or carelessness on the part of the Managers of such undertakings.
44. The basis of such liability is the danger inherent in the very nature of such inactivity. The liability cast on such person is known in law as strict liability, it differs from liability which arises on account of negligence i.e. the concept of negligence comprehends that the force in a harm can be avoided by taking reasonable precaution. If a defendant did all that which could be done for avoiding the harm, they 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 defendants are held liable irrespective of whether they could have avoided the particular harm by taking precautions.
45. It is established that the deceased died due to electrocution from the electric wire at the site in Mandir. The onus to prove that the said electric wire was installed and maintained by defendant nos. 1 & 2 properly and has no live current to cause the death of the deceased. Defendant nos. 1 & 2 were further under an obligation to show that the death of the deceased was not caused due Page No. 21 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 to any negligence on the part of the defendants. As mentioned above, there is nothing on record except the bald averments of the defendants, therefore, looking from any angle whatsoever, there is no escape from the conclusion that the electric wire at site was having electrified with the current and such wire were hanging over the roof of the Mandir touching the railing at the spot. It is proved that the death of the deceased took place due to electrocution from the electric wire and, therefore, the negligence of the defendants responsible to maintain and upkeep the wire is also proved. It is further proved that there was electricity in the electric wire due to the faulty maintenance and negligence on the part of the defendants who were responsible to maintain the same. The defendants have not brought anything contrary to rebut the case of the plaintiff. Keeping in view the above legal position the question is whether the defendants are liable for the actionable negligence is answered in affirmative from the material on record on the basis of preponderance of probabilities. Therefore, defendant nos. 1 & 2 are jointly and severally liable for negligence with regard to the death of the deceased and therefore, liable to pay damages/compensation.
46. The contention of ld. Counsel for defendant no.3 is that it is the negligence of the Mandir in raising the unauthorized construction which resulted in electrocution of the deceased in as much as the inspection conducted by defendant nos. 1 & 2 revealed that there was no leakage in the wire installed over the Mandir and there was no possibility of electrocution from the wire passing over the Mandir. The defendant no. 3 is not liable to be saddle with any liability in terms of insurance policy.
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47. As far as the contention of counsel for defendant no. 3 that defendant no. 3 is not liable to pay any damages/compensation, in as much as the present case of the electrocution of deceased is not covered under the policy is concerned, suffice is to say that the bare perusal of the insurance policy did not depict anything which may absolve defendant no. 3 from payment of compensation for act and omission for the insured tort feaser/defendant nos. 1 & 2. In the same manner the theft case registered against the Mandir and compounding thereof, lateron by the Mandir did not lead to conclude that the deceased had died of electrocution on account of the said theft in as much as no evidence has been brought on record by defendant to prove any such casual connection between the said theft and death of the deceased by electrocution.
48. This issue is accordingly decided in favor of the plaintiffs and against the defendants.
Issue nos. 2 & 3
49. The onus to prove this issue was on the plaintiffs. The next question to be examined relates to the assessment of the amount of damages/compensation to which the plaintiffs are entitled. It is well settled that accepted measure of the damages awarded is the pecuniary loss suffered by the plaintiffs as a result of death. It is also well recognized that except where there is express statutory directions to the contrary, damages to be awarded to a dependent of the deceased must taking into account any pecuniary benefit accruing to the plaintiffs/dependents in consequence to the death of the deceased. The actual pecuniary loss of the individual can only be Page No. 23 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefits, and on the other hand, any pecuniary advantage which from whatever source comes to him by the reason of the death of the deceased. The assessment of the damages to compensate the death of the deceased is beset with difficulties. Under the fatal accidents Act. However, in the judgment relied upon by the plaintiff, namely State of Mozoram v. Lalzawngliana in RFA no. 02/2014 passed by Hon'ble Gauhati High Court in para no. 12 it was observed as under :
"In a case of this nature, the basic calculation on the quantum of compensation by adopting the 2 nd Schedule of the Motor Vehicle Act, 1988 (M.V.Act) which is considered to be a guide is only acceptable. By adopting such procedure, it can be seen that the amount awarded by the learned Trial Court is reasonable. Although the Trial Court may not have indicated as to how the calculation was made, but by following the basic principles of calculation under the M.V. Act, there is no material difference in the ultimate amount arrived at by the Trial Court........."
50. The deceased was stated to be of 32 years old at the time of the death which fact has not been denied by the defendants in their pleadings. It is the contention of the plaintiff that the plaintiffs are the poor person and were totally dependent upon the deceased who was earning about Rs. 35,000/ per month. The PWs did not prove any income of the deceased, further the testimony of the PWs regarding the income of the deceased as regard the dependency of the plaintiff on the income of the deceased did not inspire confidence. The age of 32 years of the deceased at the time of his death is not disputed.
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51. From the material on record and testimony of the witnesses, this court has no hesitation in holding that plaintiffs have failed to prove the income of the deceased as contended in the plaint and the amount spend upon them, their contention is not reliable in this respect and it appears that the plaintiffs have not stated the correct income of the deceased and failed to prove the contentions in this regard.
52. Compensation in case of loss of life is calculated on the basis of pecuniary loss. It is settled law that compensation ought to be granted under heads such as pecuniary and non pecuniary damages. As the financial loss suffered pertains to uncertain feature, arithmetic niceties are not required and a rough and a fair estimate is made on the basis of the evidence and material placed on record. The Hon'ble Supreme Court after examining various theories for calculating quantum of pecuniary compensation has repeatedly held that multiplier method is logically sound and legally well established. Though not quoted reliance is placed upon Lata Wadhwa v State of Bihar 2001 (8) SCC 197, and judgment passed in R.K. Malik v. Kiran Pal in Civil Appeal No. 3608/2009, wherein Hon'ble Supreme Court has observed as under :
"14. For calculating the yearly loss of dependency the starting point is the wages being earned by the deceased, less his personal and living expenses. This provides a basic figure. Thereafter, effect is given to the future prospects of the deceased, inflation and general price rise that erodes value and the purchasing power of money. To the multiplicand so calculated, multiplier is to be applied. The multiplier is decided and determined on the basis of length of dependency, which must be estimated. This has to be necessarily discounted for contingencies and uncertainties. Reference in this regard may be made to the judgments of this Court in the case of Sarla Dixit v. Balwant Page No. 25 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 Yadav; Managing Director TNSTC Ltd. v. K.T. Bindu; T.N. State Transport Corporation Ltd. v. S. Rajapriya; New India Assurance Co. Ltd. v. Charlie and United India Insurance Co. Ltd. v. Patric a Jean Mahajan"
53. As there is no evidence regarding the educational qualification of the deceased, his income is to be assumed is Rs. 9178/ which was the minimum wages prescribed by the Govt. of NCT on the date of death of deceased. Basically only three facts needs to be established by the claimant for assessing compensation in case of death namely the age of the deceased secondly the income of the deceased and thirdly the number of dependents. The issues to be determined by the court to arrive at a loss of dependency are :
i) Addition/deduction are to be made for arriving at the income of the deceased
ii) Deduction to be made towards the personal living expenses of the deceased
iii) The multiplier to be applied with reference to the age of the deceased.
54. The court should determine the compensation in cases of death by first of all ascertaining the income of the deceased per annum and out of the said income deductions should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependent family, constitute to be the multiplicand. The multiplier is to be arrived at having regard to the age of the deceased and period of active carrier and, therefore, the appropriate multiplier should be selected. The annual contribution to the family (multiplicand) multiplied by such multiplier gives "the loss of dependency" to the family. However, no amount could be awarded Page No. 26 of 30 CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 under the head of pain, suffering hardship caused to the LRs of the deceased, but the funeral expenses, and cost of medical treatment of deceased, if incurred, should also be added.
55. The next question which arises is whether the plaintiffs are entitled in addition to the income of the deceased. The Hon'ble Supreme Court in Sarla Verma v. DTC, 2009 (9) SCC 121 has held that the deceased was self employed or was on fixed salary (without provision of annual increment etc.) the court will usually take only the actual income at the time of the death. The departure therefrom should be made only in rare and exceptional cases involving special circumstances. However, in Rajesh v. Rajbir, 2013 (6) Scale 563, it was held that the deceased was aged below 40 years, addition to income should be 50% even where the deceased was self employed or on fixed wages.
56. The plaintiffs claim that the income of deceased was Rs. 35,000/ per month. However, there is no documentary evidence of the same. The deceased was married and having four minor children. Normally in such cases 1/4th of the total income is deducted towards his personal and immediate family expenses. In some cases future prospects due to possible increase in income of the deceased during the period of dependency have been taken into consideration. In these circumstances the average monthly wages of the deceased considering the future prospects can be taken into consideration.
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57. In addition, the plaintiff are also entitled to nonpecuniary loss as death of a member of the family cannot be calculated only in terms of money and monetary compensation. The plaintiffs, being the wife and minor children parents have suffered impossible emotional loss. Compensation is to be paid to uplift the pain and soothen the loss suffered by the bereaving family members. Loss of company, loss of protection is to be compensated. A compensation of Rs. 50,000/ is awarded to the plaintiffs on this account.
58. The incident that took place on 24.02.2016 as on that date minimum wages for unskilled labour was prescribed at Rs. 9,178/ per month which is taken to be as income of deceased per month, therefore with 50% addition, it come to Rs. 13,767/. Upon deduction of 1/4th towards his personal expenses the balance income comes to Rs. 10,325.25. Since the deceased was aged 32 years, the multiplier of 16 be attracted. Hence, total compensation to which the plaintiffs are entitled for death if worked out as under :
Calculation Rs. 9178 + 50% of Rs. 9178 (i.e. Rs. 4,589) which is Rs. 13,767/ Rs. 13767 less - 1/4th share of Rs. 13,767/(i.e. Rs. 3441.75) which is Rs. 10,325/ Rs.10,325 x12 x16 which is equals to = 19,82,400/.Page No. 28 of 30
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59. Apart from the above, the Hon'ble Supreme Court has observed that the plaintiff would be held entitled to funeral expenses and common loss of estates, hence, I award the Rs. 10,000/ to the plaintiffs under the head "funeral expenses" and Rs. 10,000/ under the head "loss of estate" respectively.
60. The liability to bear the assessed compensation will be on defendant no. 1 & 2 are jointly and severally liable. As regard the liability of defendant no. 3 there is no dispute that the defendant no. 3 being the insurer of defendant no. 1 & 2. As the defendant nos. 1 & 2 is the principal tort feaser and the defendant no. 3 is the insurer, the insurance company has to indemnify against the wrong done by defendant no. 1 & 2. These issues are accordingly decided in favour of the plaintiffs and against the defendants.
61. To protect interest of plaintiffs, 10% of the compensation will be paid in cash and the balance amount will be paid in form of deposit in monthly income scheme of the post office/bank.
Relief
62. In view thereof, the suit filed by the plaintiff is "decreed" as accordingly :
(a) Decree in the sum of Rs.19,82,400 / (Rupees Nineteen Lakhs Eighty Two Thousand Four Hundred Only) alongwith simple interest @ 6 % per annum from the date of filing of suit till its realization, is passed in favour of plaintiffs and against defendant no. 1 & 2.
(b) Plaintiffs are also entitled to cost.Page No. 29 of 30
CS No.: 160/2016 Sunita & Ors. v. BSES & Ors. DOD : 06.01.2021 Decree sheet be prepared accordingly.
File be consigned to record room.
Digitally
DR signed by DR
Announced on VIJAY
VIJAY KUMAR
DAHIYA
06th Day of January 2021. KUMAR Date:
2021.01.18
DAHIYA 17:13:53
+0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
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