Jammu & Kashmir High Court
Manisha Sharma vs Union Territory Of Jammu And Kashmir on 1 March, 2024
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 14.02.2024
Pronounced on: 01.03.2024
WP(C) No. 2005/2022
Manisha Sharma .....Appellant(s)/Petitioner(s)
Aged 14 years
D/O Sh. Mohan Lal R/O Village
Nathal Senui, Tehsil Kharah Balli
District Jammu
Th. Mohan Lal, age 45 years
S/O Sh. Parkash Chand R/O Nathal
Senui, Tehsil Kharah Balli District
Jammu
Through: Mr. Vilakshan Singh, Advocate.
Vs
Union Territory of Jammu and Kashmir, ..... Respondent(s)
Th. Commissioner cum Secretary Power
Development Department, Civil Secretariat,
Jammu
Managing Director
J&K Power Development Corporation Ltd.
Jammu
Executive Engineer,
M & RE, J&K Power Development Corporation
Ltd. Akhnoor.
Assistant Executive Engineer,
J&K Power Development Corporation Ltd.
Division Akhnoor.
Junior Engineer
J&K Power Development Corporation Ltd. Sub-
Division Akhnoor.
Through: Mr. Amit Gupta, AAG.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The petitioner, who is an unfortunate girl child of 14 years of age, after having suffered amputation of her right arm up to shoulder level and two fingers of left foot because of electrocution, has filed the present petition through her father for grant of compensation for an amount of Rs. 50,00,000/- along with interest by stating therein that on 03.09.2020 while 2 WP(C) No. 2005/2022 she was playing with other children in a vacant common land situated near to her house at Village, Nathal Senui, Tehsil Kharah Balli District Jammu, she came into contact with 11 KV electric wire which was hanging in air just four to five feet above the ground level, as a result of which the petitioner suffered electric shock. Due to electrocution, the petitioner suffered multiple burn injuries on her whole body, particularly on her right arm, legs, foot and private part. The case projected by the petitioner in the present writ petition is that the petitioner suffered electric shock due to negligence on part of the officials of the respondents as they failed to maintain safe distance between the high-tension wires and the ground, so as to prevent any human being coming into contact with the electric wires.
2. The petitioner claims to have obtained treatment from the Government Medical College, Jammu. She was also treated at Amandeep Hospital, Amritsar, where she was operated upon and her right arm up to shoulder level and two fingers of left foot were amputated. The petitioner suffered permanent disablement to the extent of 90 percent. It is also stated that the FIR No. 0021/2021 dated 08.04.2021 in respect of the aforesaid incident was registered and the charge-sheet has also been filed against the respondent No. 5 and one Romesh Lal (lineman) for commission of offences under Sections 336, 337 and 338 IPC. The petitioner has placed on record the discharge summary and also the bills in respect of the expenses incurred on her treatment. The petitioner has claimed the compensation on account of permanent disablement to the extent of 90 3 WP(C) No. 2005/2022 percent suffered by her, requirement of attendant and also for the Bionic Prosthesis. The petitioner has also claimed compensation for mental and physical shock, loss of amenities, on account of loss of expectation of life and on account of inconvenience, hardship and discomfort in life.
3. The respondents have filed the response, stating therein that the writ petition filed by the petitioner is not maintainable as disputed questions of facts have been raised by the petitioner and it is further stated that on 03.09.2020 at about 4 P.M. an electrical accident occurred at village Nathal Seoni in which one Manisha Devi was injured. It is stated that on 03.09.2020 due to high flash flood and newly constructed bridge, huge silt was deposited in the Nathal Khad. The petitioner along with other children was playing in the Nathal Khad area under 11 KV Nathal Feeder which was passing over there. While standing on the huge deposited silt she raised/threw something up and came in to contact with the live conductor of 11 KV lines which was passing over there and hence resulted into electric incident. It is the stand of the respondents that there was no negligence on part of the Power Development Department and an enquiry was also conducted in which no negligence on part of the officials of the department was found. The respondents have placed on record the detailed enquiry report.
4. Mr. Vilakshan Singh, learned counsel for the petitioner has submitted that whole life of the petitioner has been spoiled because of negligence on part of the officials of the respondents in maintaining the proper distance of 4 WP(C) No. 2005/2022 electric wires from the ground, as the wires were hanging just four to five feet above the ground. He placed reliance upon the judgment of Hon'ble the Supreme Court of India in case titled "State of Himachal Pradesh and others Vs. Naval Kumar alias Rohit Kumar" reported as 2017 (3) SCC 115, and prayed that compensation of Rs.1.00 crore be granted to the petitioner.
5. Mr. Amit Gupta, learned AAG appearing on behalf of the respondents has vehemently argued that the petitioner has raised the disputed questions of facts in the present petition which cannot be adjudicated by the Court while exercising its jurisdiction under Article 226 of the Constitution of India.
6. Heard and perused the record.
7. The contention raised by the respondents is that the disputed questions of facts have been raised by the petitioner, which can't be decided while adjudicating petition under Article 226 of the Constitution of India. A perusal of the response filed by the respondents reveals that because of flash floods and newly constructed bridge, huge silt was deposited as a result of which the level of the ground was raised and the petitioner while standing/playing with the other children on the huge deposited silt raised/threw something up and came into contact with the live conductor of 11 KV lines resulting into the accident. The respondents have also placed on record the report submitted by the Enquiry Committee to demonstrate that there was no negligence on part of any of the employees 5 WP(C) No. 2005/2022 of the Power Development Department. A perusal of the report would reveal that the same is based upon the statement of the concerned Junior Engineer Sh. Malkit Singh and the concerned lineman-Romesh Lal. The enquiry report is based upon the statement of officials of the department, namely, Malkit Singh, who during the enquiry has stated that the children fiddled with the power system while playing under the line. It is not the case of the respondents that the incident of electrocution took place in presence of Malkit Singh, as such, the said report cannot be held to be conclusive in nature that there was no negligence on part of the officials of the department, more particularly when he is one of the accused in the charge-sheet. More so, there is admission on part of the respondents that the petitioner became a victim of electrocution resulting into injuries to her. Even if the contention of the respondents is accepted that due to silt level of the ground was raised, the respondents ought to have taken corrective measures to ensure that the wires remain at safe distance beyond the reach of human beings.
8. The petitioner has placed on record a copy of the FIR and also the charge-
sheet filed against both Malkit Singh and Romesh Lal officials of the respondents and relying upon the statements, the Enquiry Committee opined that there was no negligence on part of the officials of the Power Development Department. The petitioner has suffered injuries is duly substantiated by the certificate issued by the Office of the Chief Medical Officer, Health and Family Welfare, Jammu dated 21.10.2021. It clearly 6 WP(C) No. 2005/2022 establishes beyond doubt that the petitioner has suffered 90 percent disability i.e. 85%+5%.
9. In view of the above, this Court is of the considered view that the officials of the respondents were negligent in performing their duties resulting into injuries to the petitioner thereby causing permanent disablement to her.
10. This Court in "Sham Dev Singh Vs. State of Jammu and Kashmir and others" bearing OWP No. 2248/2018 decided on 22.12.2023 has held as under:
"1. The hands of the poor villager are his earnings tools and if they are lost in an accident/incident, his earning capacity would be reduced to zero and he would either starve or turn beggar, if not supported by the family or the State.
XX XX XX
10. This Court can take judicial notice of the height of the child of five years and can safely assume the height of the wires from the roof of the house of the petitioner. If the child of 5 years while playing with the iron rod could touch the wires, then it can be safely assumed that the wires were not beyond the reach of normal adult human being. The respondent Nos. 3 and 4 have admitted the averments made in para 3 of the writ petition wherein the petitioner has referred to the application submitted by one Nazir Ahmed with respondent No. 3 in respect of removal of wires and the endorsement made by the respondent No. 3 directing Executive Engineer concerned to take necessary action for the safety of the people. Otherwise also, the respondent-Power Development Department cannot impute any negligence to the minor child. Even under Indian Penal Code, the child below seven years of age is incapable of committing any crime, which is recognition of principle of 'Doli Incapax'(Section 82 IPC). Likewise, the principle of 'Violenti non-fit Injuris' is not applicable to the children. Under Indian Contract Act also, an agreement with the minor is void. When the law has granted absolute immunity to the minor in respect of civil and criminal liability, the respondent-Power Development Department cannot raise the plea of negligence on part of the minor to deny their liability to compensate the petitioner. The photographs placed on record itself reflect the short height of the child. Therefore, this Court has not even an iota of doubt in its mind that it was because of the negligence of the Power Development Department that the petitioner had suffered electric shock resulting into amputation of both his arms, which is established by disability certificate (Page-39 to the writ petition) place on record by the petitioner demonstrating that he has suffered 100% permanent disability."7 WP(C) No. 2005/2022
11. Now, the only question that is required to be examined is the quantum of compensation. In Sham Dev Singh's case (supra), this Court after relying upon the decisions of the Hon'ble Apex Court in "Kajal v. Jagdish Chand" (2020) 4 SCC 413, and Ayush v. Reliance General Insurance Co. Ltd." (2022) 7 SCC 738, fixed the notional income of the petitioner therein on the basis of wages payable to skilled workman.
12. So far as the petitioner is concerned, she was 13 years of age at the time of accident i.e. on 03.09.2020 and on the said date notification dated 26.10.2017 issued by the Labour and Employment Department, Government of J&K prescribing the minimum wages of Rs350/ per day for skilled workman was in vogue and as the petitioner was a student at that time, so she would have acquired higher qualification in future, as such, the notional income of the petitioner shall be as per the wages payable to the skilled workmen. As such, the monthly wages would be Rs. 10,500/-. The monthly income is required to be enhanced by 40 percent taking into consideration the prospects of enhancement of earnings in future in terms of judgment of the Supreme Court in "National Insurance Co. Ltd. Vs. Pranay Sethi and another" reported as (2017) 16 SCC 680. Therefore, the monthly income would be Rs. 14,700/-. The multiplier applicable would be 18. Since the petitioner has suffered 90 percent disability Thus the total loss of future earnings would be Rs. 28,57,680/-.Record further depicts that the petitioner has undergone treatment at Amandeep Hospital, Amritsar and the petitioner has placed on record the bills in respect of 8 WP(C) No. 2005/2022 expenses incurred on her treatment for an amount of Rs. 7,00,000/-. Accordingly, she is also held entitled to an amount of Rs. 7,00,000/-. The petitioner has placed on record the quotation for bionic prosthesis which as per the quotation, the petitioner may require, meaning thereby that she may or may not require as such the petitioner is held not entitled to the said amount of Rs. 35,00,000/ as now and she may approach this court in future in the event the petitioner requires the same. But from the quotation it is evident that she is having prosthetic limb, as such, she is entitled to Rs.5.00 lacs for maintenance of artificial limb. She may require attendant as well for whole of her life and also because disablement, the marriage prospects of the petitioner have reduced.
13. Accordingly, the petitioner is held entitled to the compensation under the following heads:
1. Loss of future earnings Rs. 28,57,680/-
2. Loss of Amenities and Pain and suffering Rs. 10,00,000/-
3. Loss of marriage prospects Rs. 5,00,000/-
4. Expenses for maintenance of artificial limb Rs. 5,00,000/-
5. Attendant's expenses Rs. 5,00,000/-
6. Expenses incurred on medical treatment Rs. 7,00,000/-
Total Rs. 60,57,680/-
Rounded of Rs. 60,57,700/-
(See Kajal v. Jagdish Chand" (2020) 4 SCC 413, and Ayush v.
Reliance General Insurance Co. Ltd." (2022) 7 SCC 738 & Mohd. Sabeer vs. UP SRTC, 2022 SCC OnLine SC 1701).
14. The judgment relied upon by the learned counsel for the petitioner is not applicable in the present facts and circumstances of the case as in the said case both the hands were amputated and the injured had suffered 100 percent disability.
9 WP(C) No. 2005/2022
15. As such, this Court deems it appropriate to direct the respondents to pay an amount of Rs. 60,57,700/- to the petitioner along with interest at 6 percent per annum except on the component of future earnings and attendant's expenses from the date of filing of the writ petition till its final disbursal. Out of the said amount, an amount of Rs. 50,00,000/- shall be kept in fixed deposit for period of three years and thereafter the petitioner shall be at liberty to withdraw the same. In the event, the petitioner requires more amount for meeting her education or other requirements, she shall be at liberty to approach this Court for release of the amount kept in fixed deposit.
16. Disposed of.
(RAJNESH OSWAL) JUDGE Jammu 01.03.2024 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No.