Delhi District Court
Smt. Afsari vs B. S. E. S. Yamuna Power Ltd on 5 April, 2014
In the Court of Sh. Gorakh Nath Pandey
Additional District Judge02 ( NE)
Karkardooma Courts, Delhi.
CS No. 16/14
IN THE MATTER OF :
1. Smt. Afsari
W/o Late Sh. Ashraf
2. Smt. Kulsum
W/o Late Sh. Aslam
3. Master Imran
S/o Late Sh. Aslam.
Through it's Natural Guardian i.e.
Defendant No. 2
All Resident of
A391, Old Seema Puri
Delhi110095
................ Plaintiffs
VERSUS
1. B. S. E. S. Yamuna Power Ltd.
Through it's Principal Officer,
Shakti Kiran Building Near
Karkardooma, Shahdra, Delhi 110092
2. Municipal Corporation of Delhi
Through It's Commissioner,
Town Hall, Chandni Chowk,
New Delhi.
3. Govt. of NCT,
Through it's Chief Secretary,
Delhi Secretariat IP Estate,
New Delhi.
4. Sh. Harjeet Singh Oberoi
S/o Sardara Singh
CS No. 16/14 1 of 27
Afsari Vs. B. S. E. S.
R/o B246, Farmer Apartment,
Sector13, Rohini,
Delhi85.
........ Defendants
Date of Institution of Suit : 07.03.2011
Date on which Reserved for Judgment : 05.04.2014
Date of Judgment/Order : 05.04.2014
Case I.D. Number : 02402C0076402011
Suit for recovery of damages for Rs. 19,20,000 ( Rupees Nineteen Lakh
Twenty Thousand) on account of death of late Sh. Aslam
JUDGMENT
1. The plaintiffs have filed this suit for recovery of Rs. 19,20,000
( Rupees Nineteen Lakh Twenty Thousand) U/o 33 CPC as an indigent
person along with interest @ Rs. 24% Per Annum and cost of the suit as
damages/compensation on account of death of Aslam who died on
28.02.2010 at around 09:00 PM due to electrocution.
2. The suit has been filed with the averments that the deceased Aslam
was the husband, son and father of the plaintiff No. 1, 2 and 3 respectively
and the plaintiffs were fully dependent upon his earnings. The deceased was
earning Rs. 13,000/ pm and is spending about Rs. 5,000/ on the plaintiffs.
On 28.02.2010 at about 09:00 PM, the deceased along with his neighbour
was standing beside the electric pole near Urdu Primary School, Old Seema
Puri and was electrocuted due to electricity in the pole. The neighbour Akil
Ahmed tried to get him released from the electric pole and also received the
electric shock. The deceased could be released from the electric pole only
CS No. 16/14 2 of 27
Afsari Vs. B. S. E. S.
after being dead. Local persons of the locality called the police, he was taken
to the GTB Hospital but was declared brought dead by the doctor vide MLC
No. A825/10 . The postmortem was also conducted vide report No. 264/10
dated 01.03.2010 showing the cause of death, the shock as a result of
antemortem electrocution. The FIR was registered with PS Seema Puri vide
FIR No. 74/2010 U/S 304 A of IPC. The plaintiffs suffered due to the
negligence of the defendants and as death of deceased has been caused
due to fault and negligence of the defendants and the defendants are
severally and jointly liable to pay the damages, this suit is filed by the
plaintiffs against the defendants towards damages.
3. The suit has been contested by the defendant No. 1. Written statement
has been filed on behalf of defendant No. 1 raising preliminary objections
that defendant No. 2 is responsible for the maintenance of semi high mast
pole installed near MC Primary School, Old Seema Puri, Delhi. As contended
M/S Oberoi Electrical i.e. defendant No. 4/ registered contractor of MCD
installed the above pole on 15.04.09 against the work order No.
235/MW/EEEVI/ TC/200809 and is responsible for maintenance of the said
pole for a period of five year i.e. up to 14.04.2014 and therefore, the
defendant No. 4 is liable. It is further contended by defendant No. 1 that
electrocution was not due to any negligence on the behalf of defendant No. 1
and the deceased may be responsible being drunken at the time of accident
and playing with the electric pole and installed wires. While denying the
liability and all the relevant material contentions of the plaintiffs in the plaint,
the defendant No. 1 prayed to dismiss the suit with cost.
CS No. 16/14 3 of 27
Afsari Vs. B. S. E. S.
4. The defendant No. 2 in the written statement contended that the suit is
barred by for Section 477/478 of the DMC Act for want of a statutory notice
before filing of this suit and liable to be dismissed U/O 7 Rule 11 CPC being
filed without cause of action. As contended, the plaintiff has suppressed the
material facts and not paid the ad velorum Court fee for the amount as
claimed as damages. The defendant No. 2 further contended that the
defendant No. 4 is the registered contractor of MCD vide Agreement dated
23.03.2009 and installed the said semi high mast light on 15.04.2009 against
the work order No. 235/MW/EEEVI/TC/200809 dated 27.02.2009 and is
responsible for the maintenance of the said semi high mast light and all I/C
repairing and replacement, labour charges, material cost such as HPSV
Lamp, Ballasts Ignites, MCB'S Isolator, Main switch and cable etc. connecting
the said semi high mast light from BSES Pole for supplying electricity for a
period of five years i.e. 14.04.2014. Defendant No. 2 mentioned that the death
of the deceased was due to the shock as a result of antemortem
electrocution in view of the post mortem report dated 01.03.2010 No. 264/10
and the death has been caused due to fault and negligence of defendant No.
1/ BSES and defendant No. 4 and the both the defendants are jointly and
severally liable to pay the compensation. The defendant No. 2 further denied
other relevant contentions in the plaint and prayed to dismiss the suit with
heavy cost against him.
5. As the defendant No. 3 failed to file the written statement despite
ample and repeated opportunity, right to file WS by defendant No. 3 was
closed vide order dated 26.03.2012.
CS No. 16/14 4 of 27
Afsari Vs. B. S. E. S.
6. The Written Statement has been filed by defendant No. 4 also
contending that the suit is false and misused the process of the Court, there
is no cause of action for filing of this suit, the plaintiffs have suppressed the
material facts and had not paid the ad volrum court fees, the suit is liable to
be dismissed. The defendant No. 4 denied his liability or responsibility and
claimed that the suit is time barred. The defendant No. 4 admitted having
executed the work order under supervision of MCD contending that after
completion of work, the defendant No. 1 is responsible and he has no
concern. As contended the defendant No. 4 executed the work after
confirming to relevant CPWD specifications and as per the condition of work
order, the defendant No. 4 is liable if the installation is complete and handed
over to the MCD. The defendant No. 2 was under obligation to inform the
defendant No. 4 regarding the electricity flow, if any in the pole. While
denying the liability defendant No. 4 also prayed to dismiss the suit with cost.
7. As mentioned, this suit was filed by the plaintiffs as an indigent person
and the application U/O 33 CPC filed in this regard was allowed vide order
dated 21.01.2013 and the plaintiffs were granted permission to sue as indigent
person.
8. In view of the pleadings of the parties following issues were settled
vide order dated 29.05.2012.
(i) Whether Sh. Aslam died due to electrocution from electric
shock received from high mast pole installed in MCD, Primary
School, Old Seema Puri, Delhi ? If in the affirmative whether,
electric shock was received by deceased, Aslam due to faulty
CS No. 16/14 5 of 27
Afsari Vs. B. S. E. S.
maintenance/negligence on the part of the defendants ? OPP
(ii) To what amount of compensation are the plaintiffs entitled in
case it was found that death of Aslam was caused due to
negligence on the part of the defendants ? OPP
(iii) plaintiff is found entitled to any compensation, which
defendant is liable to bear the assessed compensation ? OPD
(iv) Relief.
Thereafter, case was fixed for plaintiff's evidence.
9. In support of their respective case, the plaintiffs and the defendant
have adduced oral as well as documentary evidence.
Plaintiff No. 1 filed her affidavit by way of evidence Ex. PW2/A and was
examined as PW2 in support of her claim and contentions PW1 in one way
or the other reiterated the averments as mentioned in the plaint. The
testimony of the plaintiff No. 2/PW3 was also to the same fact like PW2 who
depose by way of affidavit Ex. PW3/A.
Sh. Akil Ahmad filed his affidavit Ex. PW1/A and was examined as
PW1 whose testimony appears to be like an eye witness to the incident.
As no other witness remains to be examined by the plaintiff, PE was
closed and the case was fixed for defendant's evidence.
10. Mr. G. P. Anand, Sr. Manager, O & M, GTR, Dilshad Garden, BBlock,
Delhi was examined as DW1 by way of his affidavit Ex. D1W1/A on behalf of
defendant No. 1. No evidence was led on behalf of defendant No. 2 and 3
and therefore their evidence was closed. As observed the affidavit by way of
evidence on behalf of defendant No. 4 was filed but the witness did not
CS No. 16/14 6 of 27
Afsari Vs. B. S. E. S.
appear for crossexamination despite opportunities and thereafter the DE was
closed.
11. I have heard the final arguments on behalf of plaintiffs, defendant No.
1 and 4 and considered the written submissions filed on behalf of plaintiff and
defendant No. 1. It is reiterated that no written statement was filed on behalf
of defendant No. 3 and defendant No. 2 and 3 were proceeded ex parte.
12. It is argued by Ld. Counsel for plaintiff that the suit of the plaintiff is
liable to be decreed as the defence of the defendants is sham, baseless and
have no merits. It is further argued that the plaintiffs have proved their case
with relevant documents along with the liability of the defendants and prayed
to pass decree in favour of the plaintiffs and against the defendants as the
defendants are jointly and severally liable.
13. Ld. Counsel for the defendant No. 1 on the other hand denied any
liability contending that the plaintiffs have failed to prove the case and are not
entitled for any damages/compensation as prayed in the suit. It is further
argued this a false case and suit may be dismissed with cost. The Ld.
Counsel denied the liability of defendant No. 1 in view of absence of any
negligence/fault contending that defendant No. 2 and 4 are liable for the
maintenance and up keep of the pole and the defendant No. 1 has no liability.
14. It is argued by Sh. B. L. Madhukar, Advocate, Ld. Counsel for
defendant No. 4. that it was the fault of the deceased who has touched the
box of the high mast pole and defendant No. 4 is not responsible/liable. It is
further argued that defendant No. 4 has completed his work as per the
specification and was responsible only for the maintenance of the pole being
CS No. 16/14 7 of 27
Afsari Vs. B. S. E. S.
contractor of MCD i.e. defendant No. 2. The liability if any is of defendant No.
2 only. As further argued, complaint, if any regarding the pole had to be made
to the MCD and then MCD usually informs to be the contractor for
maintenance but nothing happened like in this case. The work was executed
by defendant No. 4 using proper earthing of the pole and current flowing to
the pole is usually and automatically cut off. Ld. Counsel argued that PW4
as per the specification of CPWD and MCD has used the armoured cable to
transfer the current direct to the pole and due to this current cannot come in
the pole installed. The work was executed by defendant No. 4 strictly under
the supervision of the higher officials of MCD, CPWD and BSES and time to
time the work was checked by CTE. The defendant No. 4 further denied the
liability and prayed to dismiss the suit with cost.
15. I have given my thoughtful consideration to the submissions and
considered relevant materials on record along with authorities/ provisions of
law. My findings on the above said issues are as under:
Issues No. (i) and (iii)
(i) Whether Sh. Aslam died due to electrocution from electric
shock received from high mast pole installed in MCD, Primary School,
Old Seema Puri, Delhi ? If in the affirmative whether, electric shock was
received by deceased, Aslam due to faulty maintenance/negligence on
the part of the defendants ? OPP
(iii) plaintiff is found entitled to any compensation, which
defendant is liable to bear the assessed compensation ? OPD
16. The onus to prove the issue No. 1 was on the plaintiff though the onus
CS No. 16/14 8 of 27
Afsari Vs. B. S. E. S.
to prove the issue No. 3 remained on the defendants. As both these issues
are inter related, these issues are examined and decided together.
17. The relevant provision of law i.e. Section 1 (a) of the Fatal Accident
Act, 1855 provides as under:
'' (1A). Suit for compensation to the family of a
person for loss occasioned to it by his death by actionable
wrong. Whenever the death of a person shall be caused
by wrongful act, neglect, or default, and the act, neglect or
default is such as would (if death had not ensued) have
entitled the party injured to maintain an action and recover
damages in respect thereof, the party who would have
been liable if death had not ensued, shall be liable to an
action or suit for damages, notwithstanding the death of
the person injured, and although the death shall have
been caused under such circumstances as amount in law
to felony or other crime.
Every such action or suit shall be for the benefit of
the wife, husband, parent and child, if any, of the person
whose death sahll have been so caused, and shall be
brought by and in the name of the executor, administrator
or representative of the person deceased;
and in every such action, the court may give such
damages as it may think proportioned to the loss resulting
from such death to the parties respectively, for whom and
CS No. 16/14 9 of 27
Afsari Vs. B. S. E. S.
for whose benefit such action shall be brought, and the
amount so recovered, after deducting all costs and
expenses, including the costs not recovered from the
defendant, shall be divided amongst the before
mentioned parties, or any of them, in such shares as the
court by its judgment or decree shall direct."
18. Being civil suit for damages, this suit is to be decided on the basis of
preponderance of probabilities. As held in the case of Vishnu Dutt Sharma
Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court
was pleased to observe that the fact 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
visavis a civil suit, indisputably is different. Whereas in a criminal case the
prosecution is bound to prove the commission of the offence on the part of
the accused beyond any reasonable doubt, in a civil suit " preponderance of
probability" would serve the purpose for obtaining a decree".
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in
183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe
that " A civil case is decided on balance of probabilities".
19. The issue as to whether Aslam died due to electrocution from electric
shock received from high mast pole installed in MCD Primary School, Old
Seema Puri, Delhi and whether the electric shock was received by deceased
Aslam due to faulty maintenance or on account of negligence on the part of
the defendants is the crucial issue because the fate of the case will depend
CS No. 16/14 10 of 27
Afsari Vs. B. S. E. S.
on the answer to the question. If this is answered in affirmative, the plaintiff
would automatically be entitled to damages. The defendant No. 1 has denied
any liability along with negligence on its part on the defence that the
defendant No. 2 was responsible for the maintenance and up keep of the pole
in question. The defendant No. 2/MCD on the other hand has fastened the
liability and negligence on defendant No. 4 contending that the defendant No.
4 is the registered contractor of MCD and vide agreement dated 23.03.2009
installed the said pole in question on 15.04.09 against the work order No.
235/MW/EEEVI/TC/200809 dated 27.02.09. As regards the electrocution as
the cause of death of the deceased, there is no denial by any of the
defendants and in one way or the other the electrocution as the cause of
death is accepted by the defendants. The defendants have merely denied
their liability along with negligence. As the regards the contentions of the
defendant No. 1 of deceased being drunken or negligent while playing with
the electric pole and wires, no evidence is placed on record nor anything is
proved by the defendants in this regard. Rather the defendants have admitted
that there was an electricity in the pole and the deceased died only due to the
electrocution by the pole in question. Except the bald averment and denial of
negligence/liability, nothing is brought on record either to show any other
cause of death of Aslam except electrocution or that there was no
abnormality or live current in the high mast pole in question.
20. The brief and relevant facts for the filing of this suit and defence of the
defendants have been mentioned at the outset. It is relevant to note that in
this case the, eye witness to the incident namely Akil Ahmed was examined
CS No. 16/14 11 of 27
Afsari Vs. B. S. E. S.
as PW1 who deposed that on 28.02.2010 at about 09:00 PM, the deceased
was stucked with the electricity pole due to high running of electricity near
Urdu Primary School, Old Seema Puri. The witness during crossexamination
also deposed to the same affect and his testimony received unimpeached in
this respect. As mentioned the death of Aslam was due to electrocution and
this fact is proved in view of the relevant materials on record like postmortem
report and other materials.
21. The question remains to be adjudicated as to whether the death of
Aslam was caused by the alleged electrocution from high mast pole due to
the faulty maintenance/negligence of the defendants as the defendants have
denied their liability raising fingers towards each other. There is no dispute at
all regarding the death and electrocution as the cause of death of Aslam and
the only issue remains to be adjudicated regarding liability of a particular
defendant for negligence along with compensation/damages.
22. In the written statement, the defendants have simplicitor denied the
contentions in the plaint mentioning that there was no negligence of the
defendants. The defendants admitted in one way or the other the
electrocution as the cause of the death of Aslam as mentioned in the plaint
and proved from the testimony of Pws and postmortem report. Admittedly, the
electrocution was from the high mast pole and there is merely evasive reply
by the defendants in the WS denying their liability. There is no specific denial
by the defendants in the written statement. Postmortem report No. 264/10
dated 01.03.2010 shows the cause of death, the shock as a result of ante
mortem electrocution and the said post mortem report is not disputed by the
CS No. 16/14 12 of 27
Afsari Vs. B. S. E. S.
defendants and in fact no question was asked during the crossexamination
of the witnesses in this respect. In view of postmortem report and testimony
of PW1, it is proved that the death of Aslam took place due to electrocution
from the high mast pole and therefore, the negligence of the defendants
responsible to maintain and up keep the high mast pole is also proved. It is
further proved that there was electricity in the high mast pole due to the faulty
maintenance/negligence on the part of the defendants who were responsible
to maintain the same. The defendants has not brought anything contrary on
record to rebut the case of the plaintiffs.
23. DW1 deposed that the work order by MCD was issued in the name of
defendant No. 4 and denied the liability of defendant No. 1/BSES. The
witness categorically deposed that electric pole in question was set up by the
MCD for electric light, electricity is tapped by the MCD from Pole set up by
the BSES and the electricity apparatus for tapping the electricity from the
pole of BSES is installed by the MCD for which BSES has no role. The
witness further deposed that BSES does not receive any complaint regarding
any defect in the electricity apparatus of the MCD and the MCD itself deals
with the complaint . The DW1 was not crossexamined by the defendant No.
2/MCD or defendant No. 4 i.e. subcontractor and the testimony of DW1
regarding the liability and negligence of defendant No. 2 and 4 remained
unimpeached/unrebutted. As mentioned no evidence was led by the
defendant No. 4 or MCD to deny the claim of the plaintiffs and negligence
imputed on them. So examining the case on the basis of preponderance of
probabilities, it is proved that the death of the Aslam took place due to
CS No. 16/14 13 of 27
Afsari Vs. B. S. E. S.
electrocution from the high mast pole and the electric shock was received due
to the faulty maintenance/negligence on the part of the defendants i.e.
defendant No. 4 and defendant No. 2 who were responsible for the up keep
and maintenance of the same ( defendant No. 2 is vicariously liable).
24. In the facts and the circumstances of the case, the doctrine of res ipsa
loquitur would also apply with full force. The maxim is stated as under:
" Where nothing is shown to be under the
management of the defendant or his servant, and the
accident is such as in the ordinary course of things
does not happen if those who have the management
used proper care, it affords reasonable evidence, in
the absence of explanation by the defendants that the
accident arose from want of care."
The maxim was examined and discussed by Hon'ble Supreme Court
in Shyam Sunder & Ors Vs. State of Rajsthan, AIR 1974 SC 890 and held
that the mere fact that the cause of the accident is unknown does not prevent
the plaintiffs from recovering damages. Hon'ble Supreme Court observed as
under:
" The maxim is only a convenient label to apply to a
set of circumstances in which the plaintiff proves a
case so as to call for a rebuttal from the defendant,
without having to allege and prove any specific act or
omission on the part of the defendant. The principal
function of the maxim is to prevent injustice which
CS No. 16/14 14 of 27
Afsari Vs. B. S. E. S.
would result if a plaintiff were invariable compelled to
prove the precise cause of the accident and the
defendant responsible for it, even when the facts
bearing on the matter are at the outset unknown to him
and often within the knowledge of the defendant.......
The maxim is based on common sense and its
purpose is to do 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 the knowledge of the defendant (see
Barkway V. S. Wales Transport ( 1950) AER 392......
The plaintiff merely proves a result, not any
particular act or omission producing the result. If the
result in the circumstances, in which he proves it,
makes it more probable than not that it was cause by
the negligence of the defendant, the doctrine of res
ipsa loquitur is said to apply, an the plaintiff will be
entitled to succeed unless the defendant by evidence
rebuts that probability ........
Over the years, the general trend in the application
of the maxim has undoubtedly become more
sympathetic to.
Plaintiffs. Concomitant with the rise in safety
standards and expanding knowledge of the
CS No. 16/14 15 of 27
Afsari Vs. B. S. E. S.
mechanical devices or our age less hesitation is felt in
concluding that the miscarriage of a familiar activity is
so unusual that it is most probably the result of some
fault on the part of whoever is responsible for its safe
performance ( see John, G. Fleming, The Law of Torts,
4th ed. , P. 260."
25. At this stage, it is relevant to impute strict liability upon the defendants.
The doctrine of strict liability has its origin in English Common Law when it
was propounded in the celebrated case of Rylands Vs. Fletcher ( 1868 Law
Reports (3) HL 330). The rule strict liability was approved and followed in
India in several decisions and the principle was reiterated in Kaushnuma
Begum Vs. New Indian Insurance Company Ltd., 2001 (2) SCC 9.
In M. C. Mehta Vs. Union of India, Hon'ble Supreme Court of India even
beyond the rule of strict liability held that, " Where an enterprise is engaged in
a hazardous or inherently dangerous activity and harm is cause 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."
26. Hon'ble Supreme Court in Union of India Vs. Prabhakaran; 2008 (9)
SCC 527 extended the principle of strict liability to cover the public utilities
which may be social utility undertaking not working for private profit. As held:
In such a case highest degree of care is
expected from private and public bodies especially
CS No. 16/14 16 of 27
Afsari Vs. B. S. E. S.
when the conduct is causes physically injury or harm
to persons.
But, in a case, where life and personal liberty
have been violated the absence of any statutory
provisions for compensation in the statute is of no
consequence. Right to life guaranteed under article 21
of the constitution of India is the most sacred right
preserved and protected under the constitution,
violation of which is always actionable and there is no
necessity of statutory provision as such for preserving
the that right.
The principles have been followed and reiterated by Hon'ble Supreme
Court in MCD Delhi Vs. Association of Victims of Uphar Tragedy & Ors (Civil
Appeal No. 711415 of 2003. As held, due to the action or inaction of the
State or its officer, if the fundamental rights of a citizen are infringed then the
liability of the state, its officials and instrumentals is strict. Claim raise for
compensation in such a case is not a private law claim for damages, under
which the damages recoverable are large. Claim made for compensation in
public law is for compensating the claimants for deprivation of life and
personal liberty which has nothing to do with a claim in a private law claim in
tort in an ordinary civil suit.
27. The ratio of judgment reported as III (2003) ACC 25 titled as Smt.
Abha Yadav & Ors. Vs. Municipal Corporation of Delhi squarely applies in
the facts of this case.
CS No. 16/14 17 of 27
Afsari Vs. B. S. E. S.
As held in M.P. Electricity Board Vs. Shail Kumar & Ors, 2002 SCC
( CRI ) 315, the Supreme Court considered the question of strict liability of the
electricity board in a case of electrocution of a citizen and ruled that in such
circumstance, irrespective of any negligence or carelessness, state electricity
board was liable to pay the damages and the exception " Act of stranger" to
the rule of strict liability was not attracted. The Court held:
" Even assuming that all the safety measure 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". It differs from the liability which arises on account
of the negligence or fault in hits way i.e. the concept of
negligence comprehends that the foreseeable harm could
be avoided by taking reasonable precautions.
One of the seven exceptions to the doctrine of strict
liability is." act of stranger i.e. if the escape was cause by
the unforeseeable act of a stranger, the rule does not
apply. But that exception is not available to the Board as
the act attributed to the third respondent should
CS No. 16/14 18 of 27 Afsari Vs. B. S. E. S.
reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant Board."
28. Applying the principle of res ipsa loquitor and strict liability, it was not for the plaintiffs to prove that defendants were negligent. Rather it was for the defendants to prove that defendants were not negligent and has taken every precaution for safety of all invites and visitors. The factum of death of Aslam on account of electrocution as a result of the negligence of the 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 ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
29. It is proved that the responsibility of the maintenance and up keep of the high mast electric pole in question was upon the defendant No. 2 and the defendant No. 2 awarded the contract for maintenance and up keep of the same to defendant No. 4. The defendant No. 1 is not liable as there is no fault/negligence of defendant No. 1. The relationship of defendant No. 2 and 4 is admitted in the pleadings and is also proved in view of the testimony of DW1. The electricity pole in question was set up by the MCD for street light and the electricity was tapped by the MCD from the pole set up by BSES. It was the responsibility of the MCD and the defendant No. 4 being contractor of MCD to maintain the pole in question. If the energy transmitted caused injury or death of a human being, who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of the supplier of the CS No. 16/14 19 of 27 Afsari Vs. B. S. E. S. electricity. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as " strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendants 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 he could have avoided the particular harm by taking precautions.
30. 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 materials on record and on the basis of preponderance of probabilities, it is established that deceased Aslam died due to electrocution from the high mast electric pole. The onus to show that the high mast electric pole was installed and maintained by the defendant No. 2 and 4 properly and has no live current to cause the death of deceased Aslam. The defendants were further under obligation to show that the death of deceased Aslam was CS No. 16/14 20 of 27 Afsari Vs. B. S. E. S. not caused due to any negligence on the part of the defendants. As mentioned there is nothing on record except bald averments of the defendants. Looking from any angle whatsoever, there is no escape from the conclusion that the high mast electric pole was electrified and became live with the current due to the negligence of the defendant No. 2 and 4 in the proper maintenance. In the opinion of this Court the defendant No. 2 and 4 is jointly and severally liable for actionable negligence in regard to the death of Aslam and therefore liable to pay damages/compensation.
31. In view of the aforesaid discussions,this court is of the considered opinion that deceased Aslam had died on account of electrocution due to live current in high mast electric pole. Since the defendants No. 2 and 4 were negligent in this regard and failed to maintain the pole, the defendant No. 2 and 4 are responsible to pay the compensation to the plaintiffs as prayed in the suit. Issue No. 1 and 3 is decided in favour of the plaintiffs and against the defendants holding that Aslam died due to electrocution from electric shock received from high mast pole installed in MCD Primary School, Old Seema Puri, Delhi due to faulty maintenance/negligence on the part of the defendant No. 2 and 4 and defendant No. 2 and 4 are jointly and severally liable to pay the assessed compensation to the plaintiffs as prayed in the suit.
Issue No. (ii)
(ii) To what amount of compensation are the plaintiffs entitled in case it was found that death of Aslam was caused due to negligence on the part of the defendants ? OPP
32. The next question to be examined relates to the assessment of the CS No. 16/14 21 of 27 Afsari Vs. B. S. E. S. amount of damages/compensation are the plaintiffs entitled.
It is well settled that the accepted measure of damages awarded is the pecuniary loss suffered by the defendants as a result of death. It is also well recognized that except where there is express statutory direction to the contrary, damages to be awarded to a dependent of a deceased person must take into account any pecuniary benefit accruing to the defendant in consequences of death of the deceased. The actual pecuniary loss of its individual can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, on the other, any pecuniary advantage which from whatsoever source comes to him by the reason of the death. Hon'ble Supreme Court in Re Gobald Motor Services Ltd. Vs. R. N. K. Valu Swami & Others stated the general principles regarding the actual pecuniary loss. The assessment of the damages to compensate the dependent is beset with difficulties.
33. In the case at hand, the deceased Aslam was stated to be 32 years old at the time of death. It is contended by learned counsel for the plaintiffs that the plaintiffs are poor persons and were totally dependent upon the deceased who was earning Rs. 13,000/pm approximately and spending about Rs. 5,000/ on the family members. The PWs in the affidavit have deposed that prior to the death the deceased was self employed engaged in the business of Ice cream and shoes. The Pws did not produce any proof of income of the deceased. Further, the testimony of the Pws regarding the income of the deceased is contrary to each other. As regards the dependency of the plaintiffs on the income of the deceased and age of 32 CS No. 16/14 22 of 27 Afsari Vs. B. S. E. S. years at the time of his death, the same is not disputed though nothing is placed on record as age proof of the deceased. From the material on records and the testimony of the witnesses, this court has no hesitation in holding that the plaintiffs failed to prove the income of the deceased as contended in the plaint and the amount spent upon them, their contention is not reliable in this respect and it appears that the plaintiffs have not stated the correct income of deceased and failed to prove the contentions in this regard.
34. The Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar reported in (2011) 1 SCC 343 observed that where there is specific medical evidence corroborating the evidence of the claimant, compensation ought to be granted under heads such as pecuniary and nonpecuniary damages. Further, tribunals ought to assess the permanent disability of the victim in relation to the functional disability suffered in respect to the whole body and not go by the percentage of disability assessed with respect to a particular part.
35. Admittedly, the deceased was self employed. In the case of Royal Sundarm Alliance Insurance Company Vs Master Manmeet Singh and Ors MAC App. 590/2011 decided on 30.01.2012 reported in MANU/DE/0377/2012, the Hon'ble High Court of Delhi had considered the question regarding the manner in which notional income of a home maker is to be determined. The Hon'ble High Court was pleased to hold that the value of services rendered by a home maker should be taken as the minimum salary of a non matriculate, matriculate or a graduate as the case may be, in the absence of any evidence to the contrary. As there is no evidence regarding the CS No. 16/14 23 of 27 Afsari Vs. B. S. E. S. educational qualification of the deceased, his income is assumed to be Rs. 5,278/which was the minimum wages prescribed by Govt. of NCT of Delhi as on 28.02.2010 i.e. date of death of deceased.
36. The next question which arises is whether the plaintiffs are entitled to addition to income, in terms of the judgment in the case of Salra Verma (supra).
In the case of Reshma Kumari versus Madan Mohan, CA No. 4646/2009 decided on 2.4.2013, the Hon'ble Supreme Court was pleased to hold that where the person was self employed, the actual income is to be assessed without any addition for future prospects. Further, Hon'ble Supreme Court in Sarla Verma Vs. DTC reported in 2009 Volume 9 SCC page 121 held that where the deceased was self employed or was on a fixed salary ( without provision for annual increments etc.), the Court will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
In the case of Rajesh versus Rajbir Singh reported in 2013 (VI) SCALE 563, the Hon'ble Supreme Court was pleased to hold that where the deceased was aged below 40 years, addition to income should be 50% even where the deceased was selfemployed or on fixed wages. Apart from the above the Hon'ble Supreme Court in the cases of Sarla Verma (supra), Rajesh versus Rajbir Singh (supra) and Vimal Kanwar & Ors. V/s Kishore Dan reported in II (2013) ACC 752 (SC) has been pleased to hold that the petitioners would be entitled to compensation on account of funeral expenses, loss of estate, loss of consortium, loss of love and affection to CS No. 16/14 24 of 27 Afsari Vs. B. S. E. S. widow and mother each, loss of care and guidance for each minor child etc.
37. The Hon'ble Supreme Court in the Case of Sarla Verma Vs. DTC reported in 2009 Volume 9 SCC page 121, was pleased to hold that where the deceased was married, deductions towards personal and living expenses of the deceased would be 1/3 where the number of dependent family members is 2 to 3. In this case, since the deceased was married having three dependents i.e. widow, mother and son, deduction of 1/3 will apply. Being 32 years of age, in terms of judgment of Hon'ble Supreme Court in Sarla Verma ( Supra) multiplier of 16 would be applicable.
38. The plaintiffs claimed that the income of the deceased was approximately Rs.13,000/ per month. However, there is no documentary evidence of the same. The death took place on 28.02.2010. As on that date minimum wages for unskilled labour was prescribed as Rs.5,278/ per month which is taken to be the income of the deceased. With 50% addition, the same comes to Rs. 7,917 /. Upon deductions of 1/3rd towards personal expenses of the deceased, the balance income comes to Rs. 5,278/. Since the deceased was aged 32 years, multiplier of 16 is attracted. Hence total compensation to which plaintiffs are entitled on account of the death of Aslam is worked out as under:
(i)MULTIPLICAND : Rs.5, 278 + 50% of 5278 = Rs. 7,917/ Rs. 7,917/ Less Rs. 2,639/ = Rs. 5,278/
(ii) ACTUAL CALCULATION: Rs. 5,278/ X 12 X 16 = Rs. 10,13,376/ Apart from the above, the Hon'ble Supreme Court in the case of Sarla CS No. 16/14 25 of 27 Afsari Vs. B. S. E. S. Verma Vs. DTC reported in 2009 (6) SCC 121 has been pleased to hold that the petitioners would be entitled to compensation on account of funeral expenses, loss of estate etc. Hence I award the following amounts to the plaintiffs under the heads mentioned.
FUNERAL EXPENSES Under this head I hold that the plaintiffs entitled to Rs.5,000/. LOSS OF ESTATE Under this head I hold that each of the plaintiffs are entitled to Rs. 5,000/.
LOVE AND AFFECTION Under this head I hold that the each of the three plaintiffs are entitled to Rs.5,000/.
39. In totality, therefore, the plaintiffs are held to be entitled to following amounts:
(a) Claim towards compensation: Rs. 10,13,376/
(b) Claim towards Funeral Expenses: Rs.5,000/
(c) Loss of Estate: Rs.15,000/
(d) Love and affection: Rs.15,000/
(e) Loss of care and guidance for minor child Rs.25,000/ Total: Rs.10, 73, 376/ LIABILITY The liability to bear the assessed compensation/damages will be on the defendant No. 2 and 4 and both the defendants are jointly and severally liable.
CS No. 16/14 26 of 27 Afsari Vs. B. S. E. S. Relief
In view of the above said discussions and findings, the suit of the plaintiffs is decreed in favour of the plaintiffs and against the defendant No. 2 to 4 jointly and severally for an amount of Rs. 10, 73, 376/ ( Ten Lakh seventy three thousand three hundred seventy six only) along with interest @ 6% per annum from the date of filing of this suit till realization with cost of the suit.
As mentioned, this suit has been prosecuted by the plaintiffs as an indigent U/O 33 CPC, the plaintiffs are therefore directed to pay the appropriate court fee as per law which would have been paid by the plaintiff while filing the suit if he had not been permitted to sue as an indigent person in view of Order 33 Rule 10 CPC. Upon payment of appropriate court fees, within two weeks, decree Sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court on this 5th day of April, 2014 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
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