Karnataka High Court
Kumari Chandana K vs Principal Secretary on 4 August, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF AUGUST 2022
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION No.1383 OF 2020 (GM-KEB)
C/W
WRIT PETITION No.53302/2018
WRIT PETITION No.6087/2019
IN W.P. No.1383/2020
BETWEEN:
MRS. REKHA
WIFE OF LATE N. SUBRAMANYA
AGED ABOUT 34 YEARS
RESIDING AT NAGANAHALLI VILLAGE,
UCHANGI POST, YESALUR HOBLI
SAKALESHPUR TALUK.
HASSAN DISTRICT - 573 137.
... PETITIONER
(BY SRI SHRIDHAR PRABHU, ADVOCATE)
AND:
1. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
K.G. ROAD
BENGALURU - 560 001
REPRESENTED BY ITS
MANAGING DIRECTOR.
2. THE CHAMUNDESHWARI ELECTRIC
SUPPLY CORPORATION LIMITED
NO.29, KAVERI GRAMEENA BANK ROAD
VIJAYANAGAR 2ND STAGE,
HINKAL, MYSURU - 570 017
REPRESENTED BY ITS
MANAGING DIRECTOR
2
3. ELECTRICAL INSPECTOR
OFFICE OF THE ELECTRICAL INSPECTOR
SAGARA NILAYA, 1 FLOOR
SRI RAGHAVENDRASWAMY TEMPLE ROAD
I CROSS, RAVINDRA NAGAR
HASSAN - 573 201.
4. THE STATE OF KARNATAKA
DEPARTMENT OF ENERGY
VIKASA SOUDHA
DR. AMBEDKAR VEEDHI
BENGALURU - 560 001
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY.
... RESPONDENTS
(BY SRI H.V. DEVARAJU, ADVOCATE FOR R1;
SRI D.C. PARAMESWARAIAH, HCGP FOR R3 & R4;
SMT. PADMA S. UTTUR, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF MANDAMUS
OR ANY OTHER WRIT OR ORDER OR DIRECTION OF THE LIKE NATURE
AND DIRECT THE RESPONDENTS TO PAY THE COMPENSATION
AMOUNT OF RS.5,00,000/- (RUPEES FIVE LAKH ONLY) AS PER 1ST
RESPONDENT KPTCL'S ORDER BEARING NO.KPTCL/B7/2476/95-96
VOL.1 BENGALURU, DATED 09.11.2017, PRODUCED HEREIN AS
ANNEXURE-A AND ETC.
IN W.P. NO.53302/2018
BETWEEN:
KUMARI CHANDANA K.,
D/O KS KRISHNAMURTHY,
AGED ABOUT 15 YEARS
RESIDING AT NO.192/27,
10TH CROSS, LOTTEGOLLAHALLI,
DEVI NAGAR, BENGALURU - 560 094.
REPRESENTED BY HER NATURAL GUARDIAN
AND FATHER KS KRISHNAMURTHY
S/O SOORE GOWDA
AGED ABOUT 43 YEARS
RESIDING AT NO.192/2017
10TH CROSS, LOTTEGOLLAHALLI,
3
DEVI NAGAR,
BENGALURU - 560 094.
... PETITIONER
(BY SRI CLIFTON D' ROZARIO, ADVOCATE)
AND:
1. PRINCIPAL SECRETARY
DEPARTMENT OF ENERGY
VIKASA SOUDHA
BENGALURU - 560 001
2. BANGALORE ELECTRICITY COMPANY (BESCOM)
REPRESENTED BY MANAGING DIRECTOR
K R CIRCLE
BANGALORE - 560 002.
3. KARNATAKA STATE COMMISSION FOR
PROTECTION OF CHILD RIGHTS
4TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD,
AMBEDKAR VEEDHI,
SAMPANGI RAMA NAGAR
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI D.C. PARAMESWARAIAH, HCGP FOR R1;
SRI H.V. DEVARAJU, ADVOCATE FOR R2;
R3 - SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN APPROPRIATE WRIT,
ORDER OR DIRECTION TO THE 1ST AND 2ND RESPONDENT DIRECTING
THEM TO PAY COMPENSATION OF RS.90,00,000/- (RUPEES NINETY
LAKHS ONLY) TO THE PETITIONER ALONG WITH INTEREST THEREON
AND ETC.
IN W.P. NO.6087/2019
BETWEEN:
MUIZZ AHMAD SHARIFF
S/O SHRI MAQSOOD AHMED SHARIF
AGED ABOUT 7 YEARS
RESIDING AT NO.17, 1ST FLOOR, 2ND MAIN,
4
GURANANPALYA B.G. ROAD
BENGALURU - 560 029.
REPRESENTED BY HIS NATURAL GUARDIAN
AND FATHER, SHRI MAQSOOD AHMED SHARIF
S/O LATE SHRI MAQBOOL AHMED
AGED ABOUT 35 YEARS
RESIDING AT NO.17, 1ST FLOOR, 2ND MAIN,
GURANANPALYA B.G. ROAD
BENGALURU - 560 029.
... PETITIONER
(BY SRI CLIFTON D' ROZARIO, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY THE
PRINCIPAL SECRETARY
DEPARTMENT OF ENERGY
VIKASA SOUDHA
BENGALURU - 560 001
2. THE MANAGING DIRECTOR
KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED
CAUVERY BHAVAN,
BENGALURU - 560 001.
3. KARNATAKA STATE COMMISSION FOR
PROTECTION OF CHILD RIGHTS
4TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD, AMBEDKAR VEEDHI,
SAMPANGI RAMA NAGAR
BENGALURU - 560 002.
... RESPONDENTS
(BY SRI S. SRIRANGA, SENIOR ADVOCATE FOR
SMT. SUMANA NAGANAND, ADVOCATE FOR R2;
SRI D.C. PARAMESWARAIAH, HCGP FOR R1;
SMT. B.V. VIDYULATHA, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE AN APPROPRIATE WRIT,
ORDER OR DIRECTION TO THE 1ST AND 2ND RESPONDENT DIRECTING
THEM TO PAY COMPENSATION OF RS.90,00,000/- (RUPEES NINETY
LAKHS ONLY) TO THE PETITIONER ALONG WITH INTEREST THEREON
ANNEXURES-U TO Y AND ETC.
5
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED
ON 28.06.2022 AND COMING ON FOR PRONOUNCEMENT OF ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
S. SUNIL DUTT YADAV. J This Order has been divided into the following Sections to facilitate analysis:
I Preamble 6 II Prayer 7 III Facts 8 IV Contentions of Parties 12 V Analysis: 22
A. Nature of Liability of Transmission Utility and 22 Distribution Company:
a) Liability under Common Law
b) Liability under Statutory Framework imposing duty to ensure safety during transmission and distribution B. Maintainability of Writ Petitions 42 C. Relegation to Civil Court after granting 50 provisional compensation D. Right to claim Compensation irrespective 56 of paymnet of Exgratia/Solatium Amount E. Apportionment of Liability 57 F. Contributory Negligence of Child 59 VI Conclusion 63 VII Quantum of Compensation 74 VII Order 87 6 I PREAMBLE:
W.P.No.53302/2018, 6087/2019 and 1383/2020 all are legal actions initiated invoking writ jurisdiction claiming compensation by way of a public law remedy consequent upon injuries suffered (W.P.No.53302/2018 and 6087/2019) and death due to electrocution (W.P.No.1383/2020). As the legal basis for relief sought similar, as also the claim being made against the transmission utility and distribution companies i.e., Karnataka Power Transmission Corporation Limited ("KPTCL" for brevity), Bengaluru Electric Supply Company ("BESCOM" for brevity) (W.P.No.53302/2018 and W.P.No.6087/2019) and Chamundeshwari Electric Supply Company ("CESCOM" for brevity) (W.P.No.1383/2020), the matters are taken up together and disposed off by a common order.7
II PRAYER:
2. Following are the relief's sought for in these petitions:2.1. W.P.No.53302/2018
(a) Issue an appropriate writ, order or direction to respondent nos.1 and 2 directing them to pay compensation of Rs.90,00,000/- to the petitioner along with interest.
(b) Issue a direction to the authorities to install and maintain all the electrical wires, conductors, apparatus etc., in accordance with Electricity Act, Rules and Regulations etc., so that no untoward incident takes place in future.2.2. W.P.No.6087/2019
(a) Issue an appropriate writ, order or direction to the respondent nos.1 and 2 directing them to pay compensation of Rs.90,00,000/- to the petitioner along with interest thereon.8 2.3. W.P.No.1383/2020
(a) Issue a writ of certiorari or any other writ or order or direction of the like nature quashing Order No.KPTCL/B7/2476/95-96 Vol I BENGALURU dated 09.11.2017 vide Annexure-'A'.
(b) To direct the respondents to pay compensation of Rs.68,74,000/- along with applicable interest. III FACTS:
3. The facts giving raise to the petitions in each of the matters are as follows:3.1. W.P.No.53302/2018
(i) The petitioner who was a student studying in IX Standard, on 19.10.2017 while carrying an iron mop stick while climbing the staircase in her residence came in contact with 11 KV Electrical line and was electrocuted and suffered grievous injuries.9
(ii) LIST OF EVENTS:
19.10.2017 Petitioner suffered injuries due to electrocution. 06.01.2018 Vidyaranyapura P.S. registered a First Information Report in Crime No.0007/2018 (Annexure-H - Copy of FIR; Annexure- J - Copy of complaint) 17.09.2018 Electrical Inspector submitted enquiry report (Annexure-R1 to Statement of Objections of respondent no.2) 27.03.2018 The Karnataka State Commission for Protection of Child Rights ("KSCPCR" for brevity) passed an order directing the Respondent No.2 to pay compensation of Rs.50,00,000/-and further directed the second respondent to provide robotic arm to the petitioner (Annexure-K)
02.08.2018 Representation by petitioner to BESCOM to implement the order of KSCPCR 26.09.2018 Representation addressed to the Additional Chief Secretary to the Government, Energy Department to pay compensation for the disability suffered in terms of the judgments of the Supreme Court. 30.08.2019 Order was passed in W.P.No.48907/2018 declaring that the order of Commission is to be treated as recommendatory and orders to be passed by the State Government after affording an opportunity of hearing to the parties.(Annexure-R6 of statement of objections of respondent no.2) 28.01.2020 Order passed by the Additional Chief Secretary, Energy Department pursuant to the direction of the Commission and directing payment of Rs.2,50,000/- towards rehabilitation and treatment. 05.03.2020 Communication addressed by BESCOM to implement the order of Additional Chief Secretary, Energy Department. (Annexure-R8 of statement of objections of respondent no.2) 10 3.2. W.P.No.6087/2019
(i) Muizz Ahmed Shariff who is aged about 05 years 08 months, on 16.09.2017 jumped from his building onto the neighbouring building to retrieve a cricket ball was electrocuted when he came within the induction zone of 66 KV High Tension Line and suffered severe injuries.
(ii) LIST OF EVENTS:
16.09.2017 Electrical accident resulting in injuries when the child came within the induction zone of 66 KV High Tension Line.
17.09.2017 Suddaguntepalya P.S. registered an FIR in Crime No. 0007/2018 (Annexure-S) 18.09.2017 Counseling Notes of Rainbow Hospital indicating injuries caused by electrocution (Annexure-C)
----- Discharge Summaries (Annexure - F to N) 19.02.2018 Report of the Electrical Inspector (Annexure-R1 of statement of objections of respondent no.2) 12.04.2018 KSCPCR passed an order directing the Managing Director to pay compensation of Rs.40,00,000/- to the petitioner (Anexure-T) 30.08.2019 Order was passed in W.P.No.26329/2018 declaring that the order of Commission is to be treated as recommendatory and orders to be passed by the State Government.
09.03.2020 Order passed by the Additional Chief Secretary, Energy Department pursuant to the direction of the Commission directing payment of Rs.5,00,000/- towards rehabilitation and treatment. Representation submitted to Chief Secretary (Annexure-U) to the Energy Department
-----
(Annexure-V), to Chairman, KPTCL (Annexure-W) seeking payment of compensation.
113.3. W.P.No.1383/2020
(i) Petitioner is stated to be the widow of late N.M.Subramanya, an agricultural worker who is stated to have died in an electrical accident while working in a coffee plantation while harvesting pepper using an aluminum ladder which came in contact with 11 KV Feeder Line resulting in electrocution and he succumbing to the injuries eventually leading to his death.
(ii) LIST OF EVENTS:
DATE EVENTS
22.02.2018 Petitioner's husband lost his life in an electrical accident leading to death.
22.02.2018 FIR was registered (Annexure-C) 31.05.2018 Electrical Inspector submitted enquiry report (Annexure-E) 05.10.2018 Petitioner gave a representation to the Additional Chief Secretary, Department of Energy, Government of Karnataka requesting payment of solatium in terms of the order of the KPTCL dated 09.11.2017.
30.04.2019 KPTCL addresses communication to the Superintending Engineer disputing report of Electrical Inspector and declined to pay compensation.
10.05.2019 CESCOM by its communication to the Executive Engineer has also declined to pay compensation to the legal representatives of the deceased contending that there was no fault on its part. 12
IV Contentions of Parties :
4. The contentions raised by the parties to the petition in each of the matters are as follows:
4.1. W.P.53302/2018
(a) Contentions of Petitioner
(i) The petitioner has contended that the principle of
strict liability without defences would apply insofar as electricity is a dangerous commodity and the respondents are engaged in supply/transmission and distribution of electricity which is an inherently dangerous activity. It is contended that the liability as laid down in Naval Kumar @ Rohit Kumar v. State of H.P. & Ors.1 requires to be applied. Reliance is also placed on the judgment in the case of M.C.Mehta and Another v. Union of India and Others2, M.P.Electricity Board v. Shail Kumari and 1 (2015) SCC Online HP 731 2 (1987) 1 SCC 395 13 Others3 and Smt.Bhagyabai and Others v. Principal Secretary, Department of Energy and Others.4
(ii) It is specifically contended that the question of negligence as regards children cannot be raised as a defence. While placing reliance on Naval Kumar (supra) it is contended that concept of contributory negligence cannot be made applicable to a child.
(iii) As regards quantification of compensation, it is contended that the recommendation of the Karnataka State Commission for Protection of Child Rights ('KSCPCR' for brevity) whereby a compensation amount of Rs.50 Lakhs was recommended ought to have been accepted. Though the High Court had declared that recommendation of the State Commission was only recommendatory and pursuant to such recommendation, the Government had taken a decision and awarded a sum of Rs.2,50,000/-, subsequently, the Apex Court in the case of National Commission for Protection of Child Rights and Others 3 (2002) 2 SCC 162 4 W.A.No.3249/2010 & 3540-43/2010 DD: 25.10.2010 14 v. Dr. Rajesh Kumar and Others5 has held that the Court would normally expect that the Government would accept the recommendations of the State Commission.
(iv) Petitioner has filed a memo calculating compensation and while relying on the calculation of compensation in Naval Kumar (supra), compensation in terms of medical expenses, loss of future income and under other heads like loss of companionship, loss of amenities and compensation on the ground of pain and sufferings has been quantified in terms of the memo dated 07.02.2022. Further, as per memo dated 21.03.2022, estimated expenditure for further treatment has been placed on record.
b) Contentions of Respondent No.2
(i) The respondent no.2 has contended that there
was no negligence by BESCOM as the distance between the electric line and building was 1.2 meters as was prescribed. It is further contended that the order in W.P.No.48907/2018 5 (2020) 11 SCC 377 15 clarified that the order of the State Commission was to be treated as a recommendatory and State Government was required to pass an order, which order has been passed holding that there was no negligence on the part of BESCOM.
(ii) It was further submitted that the State Government had however directed BESCOM to pay a sum of Rs.2,50,000/- as solatium towards rehabilitation and for providing prosthetic forearm to her left hand and steps have been taken in terms of Annexure- R8 of the statement of objections to pay the said amount. Accordingly, any further claim of enhanced amount was a matter for consideration before the Civil Court.
4.2. W.P.No.6087/2019
(a) Contentions of Petitioner
(i) The petitioner has contended that the authorities have violated Rule 80 of Indian Electricity Rules, 1956 insofar as the distance of the high voltage line from the 16 building. It is further submitted that the respondents were aware of such violation and had issued notice to the owner. But upon taking an undertaking from the owner that it would be the liability of the owner of the house in case of an electrical accident, it had proceeded to provide for power supply. Accordingly, it is submitted that the respondent no.2 is to be fastened with liability.
(ii) It is also submitted that the KSCPCR had also passed an order directing the respondent to pay compensation which had also recorded a finding that the respondent was guilty of dereliction of duty for not taking proper action against the persons who put up the structure and had failed to maintain distance from the high tension wires.
(iii) Petitioner has also filed a memo calculating compensation vide memo dated 07.02.2020. Further, as per memo dated 21.03.2022, estimated expenditure for further treatment has been placed on record.
17
b) Contentions of Respondent No.2 (Power Transmission Corporation)
(i) It is the contention of respondent No.2 that the petition is not maintainable in light of the disputed facts and ought to have been filed before the trial court.
(ii) It is further contended that there has been violation in adherence to Rule 80 and 82 of the Indian Electricity Rules, 1956 insofar as putting up of structure within the buffer distance to be maintained from high voltage lines.
(iii) It is also contended that the petitioner was of a height of 3.5 Feet and the 66 KV Power Transmission Line was at a height of 9 feet and the only manner by which the child would have come in contact with the line was by way of additional contraption which act has caused the accident and liability for which cannot be attributed to the respondent.
18
(iv) It is contended that exception to Strict Liability would apply as the accident was as a result of negligence of the owner and compensation is required to be apportioned by fastening liability on the building owner also.
(v) The petitioner having obtained compensation of Rs.1,00,000/- from the Karnataka Wakf Board and Rs.50,000/- from BBMP cannot pursue the present remedy and must be relegated to the Civil Court.
(vi) It is also submitted that pursuant to the order of the KSCPCR, matter was referred to the Government for necessary decision (order dated 30.08.2019 in W.P.No.26329/2018) on the recommendation of the Commission and the Government has ordered payment of Rs.5,00,000/- towards rehabilitation and treatment of the child, which is also a ground for relegation of the petitioner for the claim of further compensation before the Civil Court.
194.3. W.P.No.1383/2020
a) Contentions of Petitioner:
(i) The petitioner had contended that respondent
no.1 - KPTCL was to be held responsible in light of the report of the Electrical Inspector who has observed that there has been lapse on part of KPTCL in maintenance of 'power braker' attached to the 11 KV Feeder Line, which did not trip, cutting off the power supply. It is submitted that the Electrical Inspector had concluded that there was violation of Regulation 45 (2) (ii).
(ii) It is further contended that respondent no.2 which is a Distribution Company was also to be held liable. It is contended that in terms of the 'Electrical Accidents - A Consumer Guide to Claim Solatium', whenever the accident takes place, the consumer/victim or relatives upon informing the authorities as per the procedure to be followed, compensation is to be paid based on the documents, reports submitted and investigation conducted 20 by the Chief Electrical Inspector, Government of Karnataka ('CEIG' for brevity) within two months of the report of the CEIG. It is also contended that wherever overhead electrical lines are the cause of the accidents/fatality, compensation shall be paid without waiting for the report of the CEIG.
It is submitted that the said procedure has not been followed in granting the compensation fixed in terms of the Government Order No.KPTCL/B7/2476/95-96/Vol-I/ Bengaluru dated 09.07.2017.
(iii) As regards the quantum of compensation, claim of Rs.68,74,000/- has been made and calculated as per the pleadings found in Para 23 and 24 of the petition by applying principles as followed in determining compensation in claim petitions under the Motor Vehicles Act. b. Contentions of Respondent No.2 (Electricity Supply/ Distribution Corporation)
(i) The respondent no.2 has contended that there was no leakage of power in the line and that the 21 connections were intact and accordingly, there was no fault on the part of the Corporation.
(ii) It is further contended that there are disputed facts and matter is to be subjected to trial before the Civil Court, that the incident occurred due to the fault of the owner of the land who had provided an aluminum ladder and accordingly, accident was due to negligence on the part of the owner and is to be construed as due to 'act of third party'.
c) Contentions of Respondent No.1 (Power Transmission Corporation)
(i) Maintenance of 11 KV Feeder Line does not come within the purview of KPTCL and fall within the control and supervision of the second respondent.
(ii) The conclusion arrived at by the Electrical Inspector has been disputed and reliance is placed on report of the Assistant Executive Engineer (Annexure-R2) which certifies that the 'Backup Relays' were in goods condition. 22
V Analysis:
A Nature of Liability of Transmission Utility and
Distribution Company:
5. In the present factual matrix, it must be noted that the transmission of electricity is by KPTCL and the distribution of electricity is by the CESCOM.
6. The nature of liability is as follows:
a) Liability under Common Law
(i) The Power Supply Company in these matters
have sought to repudiate liability on the ground that the acts of negligence by the victims was the cause or contribution for the accident or that the intervening acts by strangers/third parties were responsible for the accident.
(ii) The principle of strict liability was evolved in the case of Rylands v. Fletcher6, which provides that when a person who for his own purpose brings on to his land and collects and keeps there anything likely to do mischief and if it escapes he keeps it is at his peril and he is prima-facie 6 (1868) 3 HL 330:: (1861-73) All ER Rep 1 23 liable for the damage caused to the natural consequence of its escape. Though this principle admits of exception which includes act of strangers, the courts have negatived the applicability of defence of strict liability in case of consequences of accidents attributed to supply and distribution of electricity.
It is a settled position that electricity has been treated to be a hazardous substance for the purpose of applicability of the rule in Rylands v. Fletcher (supra).
(iii) The Apex Court in the case of M.C.Mehta (supra) where claims for compensation were sought on behalf of persons who had suffered consequent to escape of oleum gas from the units of Sriram Foods & Fertilizers Industries has laid down the law as regards consequences of accidents where inherently dangerous activities are carried on. The principle of absolute liability was laid down whereby liability was made absolute i.e., strict liability sans defences. The observations of the Apex Court at Para 31 is self-explanatory and reads as follows: 24
"....We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher."
This principle propounded by the Apex Court in M.C.Mehta has been extended to be applicable in the case of electrical accidents also in the case of Shail Kumari (supra).
(iv) In Shail Kumari, a workman in a factory, while riding on a bicycle returning from his factory rode over a live electric wire and was electrocuted instantaneously and while considering the defence of the Power Companies, the Apex Court has observed at Para 7 and 8 as follows:
"7. It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly 25 trapped into it, the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the lookout of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.
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 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 26 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."
Further, the Apex Court while approving the law laid down in M.C.Mehta (supra), wherein the principle of absolute liability was laid down, at Para 13 has concluded as follows:
"13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands v. Fletcher [(1868) 3 HL 330 : (1861-73) All ER Rep 1] ) being "an act of stranger". The said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant-Board ...."
The Apex Court has specifically declined to entertain the defence of 'Act of God' and 'Acts of Strangers' while referring to other judgments as per the observations made in Para 14 which reads as follows:
"14. The Privy Council has observed in Quebec Rly., Light, Heat and Power Co.27
Ltd. v. Vandry [1920 AC 662 : 89 LJPC 99 : 123 LT 1] that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind and high-tension current found its way through the low-tension cable into the premises of the respondents was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road."
(v) In another judgment of the Apex Court in the case of H.S.E.B and Others v. Ram Nath and Others7 the same principle was extended where liability was sought to be disowned by the Power Supply Company by contending that the unauthorised structure near the electric line had contributed to the accident, the Apex Court overruled such objection in the following words:
"6. The appellants are carrying on a business which is inherently dangerous. If a person were to come into contact with a high-tension wire, he is bound to receive serious injury and/or die. As they are carrying on a business which is inherently dangerous, the appellants would have to ensure that no injury results from their activities. If they find that unauthorised constructions have been put up close to their wires it is their duty to ensure that that 7 (2004) 5 SCC 793 28 construction is got demolished by moving the appropriate authorities and if necessary, by moving a court of law. Otherwise, they would take the consequences of their inaction. If there are complaints that these wires are drooping and almost touching houses, they have to ensure that the required distance is kept between the houses and the wires, even though the houses be unauthorised. In this case we do not find any disputed question of fact."
(vi) The same legal position has been reiterated by a Co-ordinate Bench at Dharwad in the case of The Managing Director, HESCOM and others v. Shri Nagappa Manneppa Naik and Others8 at Paras 32 to 34.
(vii) All doubts regarding imposition of strict liability without defences on the power companies which are in fact statutory corporations have been removed by virtue of the clarification regarding the applicability of strict liability principles by the Apex Court in the case of Union of India v. Prabhakaran Vijaya Kumar and Others9 in the following words-
8 W.P.No.101244/2016 & Conn. Matters DD: 03.09.2021 9 (2008) 9 SCC 527 29 "39. The decision in M.C. Mehta case [(1987) 1 SCC 395 : 1987 SCC (L&S) 37 : AIR 1987 SC 1086] related to a concern working for private profit. However, in our opinion the same principle will also apply to statutory authorities (like the Railways), public corporations or local bodies which may be social utility undertakings not working for private profit.
40. It is true that attempts to apply the principle of Rylands v. Fletcher against public bodies have not on the whole succeeded vide Administrative Law by P.P. Craig, 2nd Edn., p. 446, mainly because of the idea that a body which acts not for its own profit but for the benefit of the community should not be liable. However, in our opinion, this idea is based on a misconception. Strict liability has no element of moral censure. It is because such public bodies benefit the community that it is unfair to leave the result of a non-negligent accident to lie fortuitously on a particular individual rather than to spread it among the community generally.
47. However, apart from the principle of strict liability in Section 124-A of the Railways Act and other statutes, we can and should develop the law of strict liability dehors statutory provisions in view of the Constitution Bench decision of this Court in M.C. Mehta case [(1987) 1 SCC 395 :
1987 SCC (L&S) 37 : AIR 1987 SC 1086] . In our opinion, we have to develop new principles for fixing liability in cases like the present one.
49. There are dicta both ancient and modern that the known categories of tort are not closed, and that novelty of a claim is not an absolute defence. Thus, in Jay Laxmi Salt Works (P) Ltd.
v. State of Gujarat [(1994) 4 SCC 1 : JT (1994) 30 3 SC 492] the Supreme Court observed : (SCC p. 10, para 8) "8. ... law of torts being a developing law its frontiers are incapable of being strictly barricaded."
50. In Ashby v. White [(1703) 2 Ld Raym 938 :
92 ER 126] it was observed (vide Pratt, C.J.):
"Torts are infinitely various, not limited or confined."
51. In Donoghue v. Stevenson [1932 AC 562 :
1932 All ER Rep 1 (HL)] , it was observed by the House of Lords (per Macmillan, L.J.) : (All ER p.
30 A)
"... the conception of legal
responsibility may develop in
adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life."
The above view was followed in Rookes v. Barnard [1964 AC 1129 : (1964) 2 WLR 269 :
(1964) 1 All ER 367 (HL)] and Home Office v.
Dorset Yacht Co. Ltd. [1970 AC 1004 : (1970) 2 WLR 1140 : (1970) 2 All ER 294 (HL)]
52. In view of the above, we are of the opinion that the submission of learned counsel for the appellant that there was no fault on the part of the Railways, or that there was contributory negligence, is based on a total misconception and hence has to be rejected."
31
(viii) Accordingly, in light of the principle ubi jus ibi remedium the remedy will have to be worked out in light of the consequences of injury to the person arising out of changing nature of the activities of the State.
(ix) The trend of the state instrumentalities in attempting to unsettle the settled questions after having suffered orders and having accepted the same, requires to be frowned upon. The question of liability under common law was explained and applied in a detailed order of the Co-ordinate bench at Dharwad in Shri Nagappa Manneppa Naik (supra) at para 32 to 34 which is extracted as follows:
"C) Nature of liability of Power Supply Company
32. The Power Supply Companies have sought to repudiate liability on the ground that the claimant by his/her acts of negligence was responsible for the accident and hence the company was not liable, that there were intervening acts by strangers/third parties which were responsible for the accident. All such contentions raised are no longer available for being canvassed in light of the law laid down by the Apex Court in the case of Madhya Pradesh 32 Electricity Board (supra). The facts of the case was that the deceased who was riding a bicycle rode over a live wire, lying on the road which was inundated with water and the victim died of electrocution. The defence taken was that one Hari Gaikwad had taken a wire from the main supply line to pilfer power and the line got unfastened from the hook and it fell over the road which caused the accident. While the court reiterated the applicability of strict liability but explicitly ruled the inapplicability of the defences available to 'strict liability' including that of an "an act of stranger".
33. The Court while approving the law laid down in the case of M.C.Mehta v. Union of India reported in 1987 1 SCR 819 has in effect declared that there would be absolute liability i.e., strict liability as per the rule of Rylands and Fetcher without any of the exceptions.
34. This position of law has been reiterated by the Division Bench of this court in the case of Bhagyabai v. Principal Secretary, Department of Energy and Others in W.A.No.3249/2010 and W.A.No.3540-43/2010 dated 25.10.2010. Accordingly, the contention of the Power Supply Companies regarding absence of liability while raising defences is liable to be rejected."
x. Despite having accepted such order and not having challenged the same, the petitioner before the Dharwad bench in Shri Nagappa Manneppa Naik (supra) being KPTCL and Electricity Distribution Companies and the 33 same entities are before this court as respondents, the statement of objection however filed seeking to unsettle the very legal position that is binding upon them, reflects upon a tendency that would only contribute to increased pendency of litigation and it is time that the State entities ought to keep in mind the larger picture and having suffered orders which have attained finality, ought not to seek for re-opening the same before other benches which in effect amounts to forum shopping.
b) Liability under Statutory Framework imposing duty to ensure safety during transmission and distribution:
(i) Having discussed the liability of the Power Transmission and Distribution Companies under the Common Law, what also requires to be noticed is the duty to ensure safety as imposed by statutes upon the Companies.
(ii) The following provisions under the Electricity Act, 2003 throw light on such duty:34
• Section 53 (Provisions relating to safety and electricity supply):
The Authority may,in consultation with the State Government, specify suitable measures for -
(a) protecting the public (including the persons engaged in the generation, transmission or distribution or trading) from dangers arising from the generation, transmission or distribution or trading of electricity, or use of electricity supplied or installation, maintenance or use of any electric line or electrical plant;
(b) eliminating or reducing the risks of personal injury to any person, or damage to property of any person or interference with use of such property;
(c) prohibiting the supply or transmission of electricity except by means of a system which conforms to the specification as may be specified;
(d) giving notice in the specified form to the Appropriate Commission and the Electrical Inspector, of accidents and failures of supplies or transmissions of electricity;
(e) xxx
(f) xxx
(g) specifying action to be taken in relation to any electric line or electrical plant, or any electrical appliance under the control of a consumer for the purpose of eliminating or reducing the risk of personal injury or damage to property or interference with its use.35
• Section 68. Overhead lines (1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of sub-section (2). (2) The provisions contained in sub-section (1) shall not apply-
(a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single consumer;
(b) in relation to so much of an electric
line as is or will be within premises in the
occupation or control of the person
responsible for its installation; or
(c) in such other cases, as may be prescribed.
(3 ) xxx (4) xxx
(5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree, 36 structure or object to be removed or otherwise dealt with as he or it thinks fit.
(6) When disposing of an application under sub- section (5), an Executive Magistrate or authority specified under that subsection shall, in the case of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee.
Explanation. - For the purposes of this section, the expression "tree" shall be deemed to include any shrub, hedge, jungle growth or other plant. • Section 161.Notice of accidents and injuries:
(1) If any accident occurs in connection with the generation, transmission, distribution, supply or use of electricity in or in connection with, any part of the electric lines or electrical plant of any person and the accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give notice of the occurrence and of any such loss or injury actually caused by the accident, in such form and within such time as may be prescribed, to the Electrical Inspector or such other person as aforesaid and to such other authorities as the Appropriate Government may by general or special order, direct.
(2) The Appropriate Government may, if it thinks fit, require any Electrical Inspector, or any other person appointed by it in this behalf, to inquire and report -37
(a) as to the cause of any accident affecting the safety of the public, which may have been occasioned by or in connection with, the generation, transmission, distribution, supply or use of electricity, or
(b) as to the manner in, and extent to, which the provisions of this Act or rules and regulations made thereunder or of any licence, so far as those provisions affect the safety of any person, have been complied with.
(3) Every Electrical Inspector or other person holding an inquiry under subsection (2) shall have all the powers of a civil court under the Code of Civil Procedure, 1908 for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects, and every person required by an Electrical Inspector be legally bound to do so within the meaning of section 176 of the Indian Penal Code, (45 of 1860)."
(iii) Provision under Indian Electricity Rules, 1956 are as follows:
• Rule 30 - Service lines and apparatus on consumer's premises-
(1) The supplier shall ensure that all electric supply lines, wires, fittings and apparatus belonging to him or under his control, which are on a consumer's premises, are in a safe condition and in all respects fit for supplying energy and the supplier shall take due precautions to avoid danger arising on such premises from such supply lines, wires, fittings and apparatus.38
(2) Service-lines placed by the supplier on the premises of a consumer which are underground or which are accessible shall be so insulated and protected by the supplier as to be secured under all ordinary conditions against electrical, mechanical, chemical or other injury to the insulation.
(3) The consumer shall, as far as circumstances permit, take precautions for the safe custody of the equipment on his premises belonging to the supplier.
(4) The consumer shall also ensure that the installation under his control is maintained in a safe condition."
iv) Provisions of Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 are as follows:
• Section 12. General safety requirements, pertaining to
construction, installation, protection, operation and maintenance of electric supply lines apparatus:-
(1) All electric supply lines and apparatus shall be of sufficient rating for power, insulation and estimated fault current and of sufficient mechanical strength, for the duty cycle which they may be required to perform under the environmental conditions of installation, and shall be constructed, installed, protected, worked 39 and maintained in such a manner as to ensure safety of human beings, animals and property.
(2) xxx (3) xxx • Section 13. Service lines and apparatus on consumer's premises: -
(1) The supplier shall ensure that all electric supply lines, wires, fittings and apparatus belonging to him or under his control, which are on a consumer's premises, are in a safe-
condition and in all respects fit for supplying electricity and the supplier shall take precautions to avoid danger arising on such premises from such supply' lines, wires, fittings and apparatus. (2) Service lines placed by the supplier on the premises of a consumer which are underground or which are accessible shall be so insulated and protected by the supplier as to be secured under all ordinary conditions against electrical, mechanical, chemical or other injury to the insulation.
(3) The consumer shall, as far as circumstances permit, take precautions for the safe custody of the equipment on his premises belonging to the supplier.
(4) The consumer shall also ensure that the installation under his control is, maintained in a safe condition.
40• Section 35. Supply and use of electricity:-
(1) xxx (2) The following controls of requisite capacity to carry and break the current shall be placed as near as possible after the point of commencement of supply so as to be readily accessible and capable of being easily operated to completely isolate the supply to the installation, such equipment being in addition to any equipment installed for controlling individual circuits or apparatus, namely: -
(i) a linked switch with fuse or a circuit breaker by consumers of voltage which does not exceed 650 V; .
(ii) a linked switch with fuse or a circuit breaker by a consumer of voltage exceeding 650V but not exceeding 33 KV having aggregate installed transformer or apparatus capacity up to 1000KVA to be supplied at voltage up to 11 KV and 2500KVA at higher voltages (above 11 KV and not exceeding 33 KV);
(iii) a circuit breaker by consumers at voltage exceeding 650 V but not exceeding 33 KV having an aggregate installed transformer and apparatus capacity above 1000KVA and supplied at voltage up to 11 KV and above 2500 KVA at higher voltages (above 11 KV and not exceeding 33 KV);
(iv) a circuit breaker by a consumer of voltage exceeding 33 KV.41
Provided that where the point of commencement of supply and the consumer apparatus are near each other, one linked switch with fuse or circuit breaker near the point of commencement of supply shall be considered sufficient.
(3) xxx (4) xxx (5) xxx (6) All insulating materials shall be chosen with special regard to the circumstances of their proposed use and their mechanical strength shall be sufficient for their purpose and so far as is practicable of such a character or so protected as to maintain adequately their insulating property under all working conditions in respect of temperature and moisture; and (7) Adequate precautions shall be taken to ensure that no live parts are so exposed as to cause danger.
(8) xxx
v) Accordingly, it is to be noticed that it is the duty of the Transmission Utility and Distribution Company to ensure safety of the equipment used for transmission and 42 supply which extends to ensuring the safety of the equipments in the consumer's premises. This duty to ensure safety is irrespective of the duties imposed on the consumers and accordingly, in the event of any accident, liability as discussed above emanating from Common Law is reinforced by the duty imposed under the existing statutory framework resulting in the Power Companies being made liable for consequences of an electric accident.
vi) It is made clear that even in the absence of liability imposed through the statutory framework, the companies cannot wish away liability under the Common Law.
B. Maintainability of Writ Petition:
7. There are instances also where the State Entities commit torts giving rise to claims for compensation which is sought to be asserted by way of a Writ Petition. Liability for torts committed by the agents of the State being an accepted principle, question whether a litigant is to be 43 driven to avail of the remedy before the Civil Court is not a necessity. Once the liability of the State Entity is established as in the present case in light of discussion, by virtue of principle of absolute liability the quantification is also an aspect that has been made by the courts even in exercise of writ jurisdiction by resort to settled principles to monetarily quantify loss of life or injury to a person as is applied in motor vehicle accidents which is the methodology adopted by the Division Bench of this court in Baghyabhai (supra). The Co-ordinate Bench of this court has also adopted similar principles to calculate compensation and grant relief in case of death or injury due to electrocution in Shri Nagappa Manneppa Naik and Others (supra).
8. Accordingly, even in case of concurrent remedies being available for claim of compensation by tortious acts committed by State Entities, the invocation of writ jurisdiction cannot be objected to as the tort-feasor being State under Article 12 of Constitution of India, remedy 44 against such tort-feasor is open to be asserted by invoking such jurisdiction.
9. In the present case it must be noticed that there is absolute liability as regards the activity of the corporation as accordingly under common law liability, State being liable, remedy to enforce compensation as a result of consequences following from such tortious acts is being asserted by the petitioners. That apart claim of compensation would also be construed to be consequences of breach of statutory obligation.
10. In an action for compensation arising out of wrongs by the State and if on available facts there is clarity regarding liability and quantification though partial, then to such extent, there is no reason for denial of remedy to claim compensation in writ proceedings.
11. In the present case, taking note that the petitioner in W.P.No.6087/2019 is a child of a contract worker, who suffered severe burn injuries and petitioner in 45 W.P.No.53302/2018 is a child of an auto rickshaw driver, whose hand has been amputated requiring continuous medical treatment including plastic surgery, the delay in grant of compensation would have the effect of curtailing treatment and threatening life and existence with dignity as a normal human being which would amount to infringement of Article 21 of the Constitution of India, thereby necessitating permitting invocation of writ remedy.
Insofar as W.P.No.1383/2020, the petitioner being wife of an deceased agricultural labourer, relegation to the Civil Court may not be desired course of action when otherwise facts are sufficient to grant compensation on demonstrable legal liability.
12. The respondents have relied on various judgments essentially contending that remedy for compensation relating to electrical accident ought to be decided by the Civil Court in light of disputed questions of facts.
46
13. It must be noted that in all of the judgments relied on by the respondents, the judgment of the Constitution Bench of the Apex Court in M.C.Mehta (supra) wherein, damages was awarded in writ jurisdiction on the principle of absolute liability has not been referred to.
In fact, the Apex Court in Shail Kumari (supra) has granted compensation while endorsing and following the principle laid down in M.C.Mehta (supra).
14. Insofar as reliance by the respondents on the judgment of Chairman, GRID Corporation of Orissa Ltd. (GRIDCO) and Others v. Smt.Sukamani Das & Another10, it must be noted that the Apex Court in H.S.E.B (supra) has referred to the judgment of the Apex Court in Sukamani Das and while noticing that there were disputed questions of facts in Sukamani Das and while referring to the facts in the particular case as there was no such dispute, has granted compensation.
10
(1999) 7 SCC 298 47
15. It must be noted that in Sukamani Das there is no reference to the decision of the Constitution Bench in the case of M.C.Mehta. In fact, subsequent to the judgment in Sukamani Das in 1999, the Apex Court in Shail Kumari (2002) (supra) has affirmed the principle of law laid down in M.C.Mehta (supra). Further, in H.S.E.B.(2004) (supra) the Apex Court has once again upheld grant of compensation in exercise of writ jurisdiction while distinguishing Sukamani Das (supra).
16. The only later judgment of the Apex Court relied on by the respondents is S.D.O. Grid Corporation of Orissa Ltd. and Others v. Timudu Oram11 wherein the Apex Court had declined to entertain claim for compensation while holding that there were disputed questions of facts. However, a close scrutiny to the relevant facts of the said case would reveal that the original suit filed claiming compensation relating to the death caused due to the electrical accident had come to be dismissed and only subsequently, without challenging the 11 (2005) 6 SCC 156 48 dismissal of such suit, writ came to be filed before the High Court claiming compensation on the same cause of action.
17. In fact, the Division Bench of this court in Bhagyabai (supra) has reiterated the legal position emanating from Shail Kumari (supra) while distinguishing and holding as non-applicable the judgment of the Apex Court in S.D.O. Grid Corporation (supra). The said judgment of the Division Bench granting compensation as regards death due to electrocution has attained finality by virtue of dismissal of Special Leave Petition in BESCOM and Others v. Bhagyabai and Others12. Observations at Para 10 of the order of the Division Bench of the High Court in Bhagyabai (supra) points out to the distinction in the following words:
"10. The facts in the said decision cannot be said to be analogus, since, firstly the petition under Article 226 of Constitution of India was filed belatedly after a civil suit had already been dismissed on the same cause of action; secondly, the decision in the case of Shail Kumari cited by the learned counsel for the appellants herein, though noticed by the Hon'ble 12 SLP (Civil) 3295-3299/2011) 49 Supreme Court has not been commented upon or disapproved in the said decision, though subsequent, but, has only been distinguished as not applicable to the facts which was examined by the Hon'ble Supreme Court. In that background, since we have already noticed that a similar defence putforth in the case on hand has been rejected by the Hon'ble Supreme Court in the case of Shail Kumari wherein it was held that the dependants of the deceased were entitled to compensation, in the instant case also, the appropriate compensation is to be determined and granted."
It is also relevant to note that the court in Bhagyabai (supra) has also calculated the compensation adopting parameters applied under the Motor Vehicles Act.
18. Insofar as the contention that the writ petition is not maintainable, it is to be noticed that the Petition filed under article 226 of the Constitution of India for enforcement of Public Law Remedy is de-hors the remedy available to claim compensation under the Private Law Remedy before the Civil Courts.
19. The breach of a statutory obligation resulting in harm to a person can be sought to be addressed by way of 50 a Public Law Remedy through a petition under Article 226. The compensation granted in such an action is made in the nature of making monetary amends for such breach of statutory duty by a State Authority.
C. Relegation to Civil Court after granting provisional compensation :-
20. It is the contention of the respondents that the only appropriate remedy is to relegate the parties to invoke remedy available in the nature of claim for damages in an action based on law of torts before the appropriate Civil Courts.
21. It is contended that the disputed facts which may arise in relation to the cause of the accident and also quantification of damages as regards income earning capacity and economic potential of a child. As an alternative argument, it is also contended that the petitioners having accepted compensation in terms of the decision of the Government pursuant to recommendation of the Child Rights Commission following the order of this Court in 51 W.P.No.48907/2018 and W.P.No.26329/2018. The remaining grievance is to be redressed by the Civil Court which are competent to enter into an adjudication of disputed facts.
22. It is also contended that even if it is accepted that present remedy is a Public Law Remedy and the petitioners cannot be relegated to the Civil Court, an appropriate manner of construing such enforcement of Public Law Remedy would be to relegate the petitioners to the Civil Court after payment of solatium.
23. It is also pertinent to note that the contention of the respondents in the alternate that after grant of compensation by way of Exgratia/Solatium under the Government Order, as regards the claim of further compensation matter is to be relegated to the Civil Court as such determination of compensation would involve disputed facts is also liable to be rejected. The Division Bench of this Court in Bhagyabai (supra) has specifically observed at Para 11 that guidance could be obtained from the judgment 52 of Sarla Verma and Others v. Delhi Transport Corporation and Another13, wherein parameters relating to grant of compensation has been considered. The court then adopted the principles followed in assessment of compensation under the Motor Vehicles Act and quantified compensation. Accordingly, even as regards quantification of compensation, the courts in exercise of writ jurisdiction could adopt principles available under the Motor Vehicles Act or the Employees Compensation Act without relegating the parties to the Civil Court.
24. The respondents have placed reliance on the judgment of Coordinate Bench in the case of Sri. P.Mallappa and Others v. Bengaluru Electric Supply Company and Others14 as well as Sri. Hanumantappa v. The Chief Engineer, Bengaluru Electric Supply Company Limited and Others15 in both of which, court refers to remedy available under the Fatal Accidents Act, 1855 while relegating the parties to the Civil 13 AIR 2009 SC 3104 14 W.P.No.54502/2015 & Connected Matters DD: 16.10.2017 15 W.P.No.6726/2017 DD: 20.11.2019 53 Court. However, it must be noted that the remedy under the Fatal Accidents Act, 1855 falls within the sphere of Private Law remedy while the present claims being the remedy available in Public Law and on such ground the judgments of the Co-ordinate Bench referred to above are distinguishable.
25. The judgments relied upon by the respondents contending that there are disputed questions of facts and parties are required to be relegated to the Civil Court are all cases where there was no report of the Electrical Inspector under Section 161 of the Indian Electricity Act and not as in the present cases.
26. The report under Section 161 being made in exercise of the statutory scheme which provides for an inquiry in the event of loss of animal or human life requires to be given due weightage and be construed to be binding on the respondent Corporations as long as the same is not set aside and is to be construed to be a conclusive finding regarding the cause of accidents.
54
The relevant provision under Section 161 is extracted here below:
S.161 (2) The Appropriate Government may, if it thinks fit, require any Electrical Inspector, or any other person appointed by it in this behalf, to inquire and report-
(a) as to the cause of any accident affecting the safety of the public, which may have been occasioned by or in connection with, the generation, transmission, distribution, supply or use of electricity, or
(b) as to the manner in, and extent to, which the provisions of this Act or rules and regulations made thereunder or of any licence, so far as those provisions affect the safety of any person, have been complied with.
Accordingly, the question of there being any dispute regarding the above aspect does not arise where there are reports of the Electrical Inspector as in the present case.
27. The further reliance on the judgment of the Co-ordinate Bench in Mrs. Ashwini Manoj Patil and Others v. M/s.Bangalore Electricity Supply Company Ltd. and Others16 and Sri.Ranganath v. Managing 16 W.P.No.9667/2014 DD: 07.04.2016 55 Director, Bangalore Electricity Supply Company Ltd.17 all are judgments which do not notice the law laid down by the Division Bench in Bhagyabai (supra) which eventually has been approved by the Apex Court and is binding on this court.
28. To state that once an ad hoc amount by way of solatium is paid either under Government Order or has been paid as per the decision of the Government following the order of this court pursuant to the recommendation of the Commission (as per Government Order dated 28.01.2020 - Annexure R7 to statement of objection of respondent no.2 in W.P.No.53302/2018 and Government Order dated 09.03.2020 - Annexure R4 to statement of objection of respondent no.2 in W.P.No.6087/2019) no further prosecution of proceeding before the writ court requires to be permitted and claimant must be relegated to the Civil Courts also cannot be accepted.
17
W.P.No.40476/2019 & Connected Matters DD: 12.02.2020 56 D Right to claim Compensation irrespective of payment of Exgratia/Solatium Amount
29. Insofar as the specific attack as regards the validity of the Government Order bearing No.KPTCL/B7/ 2476/95-96/Vol-I/Bengaluru dated, 09.07.2017 which provides payment of compensation by the Electric Supply Company in form of exgratia/solatium on the ground that under it further payment is not warranted, it would be appropriate to read down the notification and save its operation in the manner as construed by this court in the case of Shri Nagappa Manneppa Naik and Others (supra) as per the observation made in Para 321 which is extracted as follows:
"320. .. The award of exgratia compensation cannot have the effect of extinguishing the right to claim compensation even if the compensation is paid under the authority of a Notification which provides that the claimant cannot plead negligence in any further proceeding as regards the company, amounting to effectively give up all claims.
321. It must be noted that the right to claim compensation particularly in the case of death is 57 a constitutional right that flows from Article 21 of the Constitution of India which, even when being exercised seeking to enforce a statutory right cannot be waived. The compensation given under any notification would at the most be treated to be exgratia compensation which however could be set off from the eventual compensation awarded. Accordingly, the contention of the company as regards this aspect is rejected."
E Apportionment of Liability :
30. Finally as regards the contention that there ought to be apportionment of compensation amongst the joint tort-feasors as is sought to be made out in W.P.No.6087/2019 where it is contended that the building owner who had put up construction in violation of Rule 80 and 82 of the Indian Electricity Rules 1952, and in W.P.No.1383/2020 the land owner who gave the aluminum ladder to the labourer for pepper harvesting was also negligent and are to be made liable is also liable to be rejected.
31. The scope of grant of compensation in an action invoking a Public Law remedy cannot be enlarged into a 58 further enquiry relating to apportionment of liability amongst the joint tort-feasors when they are private entities. Whether acts of the owner in providing an aluminum ladder as well as the act of constructing a building within the prohibited distance by the owner of the property contributing to the accident would make them joint tort-feasors and if that were to be so, manner of apportionment of liability is also an aspect of separate and further enquiry which cannot be made in the writ proceedings.
32. The Apex Court while affirming the order of the Division Bench in Bhagyabai (supra) has reserved right to the BESCOM, which was held liable to pay compensation to proceed against the joint tort-feasors in separate proceedings.
33. Insofar as the impleading application filed seeking to include BBMP on the premise that the authority had permitted illegal construction in contravention of Regulations of the Authority relating to maintaining of safe 59 distance from the electric lines, the same requires to be rejected. The role of the BBMP by its inaction or action in permitting putting up of construction and thus construing it to be a joint tort-feasor/contributory to the accident is again a matter of separate enquiry. In fact, the Apex Court in H.S.E.B. (supra) has specifically rejected the defence of the Power Corporation relating to unauthorised construction by observing that it was the duty of the Power Corporation to ensure that unauthorised buildings are demolished and such plea of unauthorised buildings would not defeat the claim against the Power Corporation as observed supra at para V A (a) (v).
F. Contributory Negligence of Child:
34. It is the contention of the respondent in W.P.No.53302/2018, that a 13 year old victim had come in contact with the electrical line only by virtue of the iron-
mop that was being carried and accordingly the victim had contributed to the accident.
60
On similar lines in W.P.No.6087/2019, the victim who was a child of 5years 8 month, jumped into neighbouring house to retrieve the cricket ball and came within the induction zone of the electrical line, hence it was also contended that there was contributory negligence on part of the child.
35. It is to be noted that the Apex Court in the case of Sudhir Kumar Rana v. Surinder Singh18, has observed at para 4 to 6 as follows:
"4. The question which arises for consideration is as to whether the appellant can be said to be guilty of contributory negligence. Ordinarily, the doctrine of contributory negligence is not applicable in case of children with the same force as in the case of adults.
5. We do not intend to lay down a law that a child can never be guilty of contributory negligence but ordinarily the same is a question of fact. (See Muthuswamy v. S.A.R. Annamalai [1990 ACJ 974 (Mad)] .)
6. A contributory negligence may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. The question of contributory 18 (2008) 12 SCC 436 61 negligence would arise only when both parties are found to be negligent."
36. As regards children, the standard of care that could be expected of them cannot be the same standard of care expected of adults as the thought process of children is often governed by 'impulse', 'instinct', and 'innocence'. (see para 11 in M.P. State Road Transport Corporation v. Abdul Rahman19)
37. In Abdul Rahman (supra) eventually the Division Bench of Madhya Pradesh High Court has rejected the claim of contributory negligence on a child's part. Para 11 of the said judgment is extracted as herein below:
"11. From the aforesaid discussion relating to contributory negligence on the part of a child of tender age there is no doubt that the concept of contributory negligence cannot be made applicable to a child. A child functions according to his own reasoning and his intelligence. Logicality and rationality are not expected from a child as a child of tender age has no continuous thinking process and is governed by his impulse, instinct and innocence. Can one ever conceive that a child, if would have been aware of the peril, would ever commit an act which is 19 AIR 1997 MP 248, 62 dangerous or hazardous for him? The answer has to be a categorical 'No', because a child's action is child-like and really innocent. Possibly for that reason, it has been said:--
"The Maker of the Stars and Sea, become a Child on earth for me?"
A child remains a child in spite of all training and directions and if anything sparkles it is the glory of his innocence which makes him indifferent to the risks which an adult apprehends and pays attention.
In view of our aforesaid analysis, we conclude and hold that Riyaz, the child of four, was not liable for contributory negligence." The same view has been reiterated by the Division Bench of Himachal Pradesh High Court in Naval Kumar (supra).
38. Accordingly in both the cases, viz.,
(a) W.P.No.6087/2019 by no stretch of imagination could it be asserted that the child ought to have exercised due care and caution in not going near the high tension electrical line and coming within the induction zone as the child could not be expected to maintain the buffer distance. 63
(b) In W.P.No.53302/2018, the child could not be expected not to carry any objects under the high tension electrical line and could not be imposed with such duty of care and caution as that expected of adults and where a child has acted according to normal 'impulse and instincts', question of fastening of contributory negligence on the child would not arise.
This is only in addition to the discussion made relating to absolute liability where the issue stands settled that none of these defences which are sought to be relied upon to contend contributory negligence could ever come into play. VI Conclusion:
39. In light of above consideration, the petitions are dealt as below:
39.1. W.P.53302/2018
(i) As regards the occurrence of accident, though FIR is registered belatedly on 06.01.2018, the inquiry by the 64 Electrical Inspector concludes that the electrical accident has happened within the Arcing Zone of the 11 KV Electric line. The report being a statutory report in terms of Section 161, as long as same has not been set aside, it is required to be accepted as binding by the respondent-BESCOM.
(ii) The fact that distance between the electrical line and building was 1.2 Meters as required would by itself not absolve the company from liability.
(iii) The other contention relating to liability under Common Law is settled and no defence would save the respondents from their liability. In fact, the respondent in the statement of objections has observed that the petitioner had touched the 11 KV line with a metal mop to collect the veil which had accidentally fallen on the 11 KV line, which would indicate that the accident had occurred due to the negligence of the petitioner. Such defence cannot be accepted and result in absolving the respondent.65
(iv) The receipt of compensation in the nature of solatium would not absolve the respondent from further liability. The recommendation of the KSCPCR and the order of the Government on such recommendation granting Rs.2,50,000/- as solatium would not have the effect of defeating the right to claim compensation.
(v) The report of Electrical Inspector would support the conclusion that the accident has been caused when the child came within the Arcing Zone.39.2. W.P.No.6087/2019
(i) The accident has occurred when the petitioner jumped on the terrace of house of Abdul Rauf and came within the induction zone of 66 KV Distribution line resulting in the electrical accident as recorded in the order of the Electrical Inspector.
(ii) The Electrical Inspector has recorded a finding that the requisite distance to be maintained between 66 KV Electrical line and the structure of 4 meters in terms of 66 Regulation 61 (2) (ii) was not maintained. In fact, while servicing the connection, an undertaking has been obtained by the owner of the building that in the event of any electrical accident, the owner would be liable. The report of the Electrical Inspector also refers to the letter addressed to the owner of the building on 26.09.2017 stating that power supply would be cut off if the distance of 4 meter is not maintained between the building and 66 KV Electrical line.
The accident has occurred subsequently thereto and there is a specific finding of the Electrical Inspector that the distance of 4 meters between the building and 66 KV Electrical line has not been maintained.
(iii) Payment of solatium under the Government Order of 09.03.2020 is only in the nature of Exgratia payment and such payment cannot in any way absolve the respondent from being held liable for compensation by invoking the Public Law remedy.
(iv) The respondent-KPTCL has filed an application to implead the owner of the building as well as respondent- 67 BBMP contending that the building was constructed in violation of Regulation that required clearance of 4 meter distance to be maintained between the building and the line and the BBMP also having failed to discharge its duties was joint tort-feasor. However, the scope of the proceedings cannot be enlarged by bringing in private respondent viz., owner of the building.
(v) Further, right of the KPTCL to seek for apportionment of liability is also a matter dealt with separately. As referred to earlier, the Apex Court in H.S.E.B (supra) has in similar factual matrix held that in the event of a structure being put up close to the wires, it is the duty of the Electric Supply Company to have it demolished by moving the appropriate authorities or else, they would bear the consequences of their inaction. 39.3. W.P.No.1383/2020
(i) The contention relating to existence of disputed facts requiring the matter to be relegated to the Civil Court 68 does not merit acceptance. The report of the Electrical Inspector in the context of undisputed facts is clear and is refers to violation of Regulation 45 (2) (ii) insofar as, where the earth fault current exceeds the limit of current for keeping the contact potential within the reasonable value and the earth fault or earth leakage protection must be sufficient to disconnect the supply automatically. As such disconnection of power supply did not ensue accordingly, the finding of the Electrical Inspector that there was a lapse by the KPTCL requires acceptance.
(ii) There is no dispute regarding the manner of occurrence of accident. The report of the Electrical Inspector stands corroborated by the version in the FIR registered on 22.02.2018, which was registered on the same day at 3.00 p.m., while the incident is stated to have occurred during the morning hours.
(iii) Though the respondent no.1 has relied on Annexure-'R2' which is the report of the Assistant Executive Engineer which certifies that the 'back-up relays' was 69 satisfactory, there is no explanation as to why there was no cutting off of power supply when the accident occurred if indeed the relays were working. The report of the Electrical Inspector is to be given due weight as such report is made in terms of the statutory scheme under Section 161 precisely where accidents occur in generation, transmission etc., resulting in loss of human life. It may not be open for the KPTCL to dispute such finding of the Electrical Inspector. Even otherwise, the report of the Electrical Inspector if not accepted is to be appealed against before the appropriate Appellate Authority under Section 162 (2) of the Act. Once the report has attained finality, same cannot be called in question in the present proceedings.
(iv) As the finding of the Electrical Inspector is that there has been violation of Regulation 45 (2) which relates to earth fault or earth leakage protection which relates to the equipment within the control of respondent KPTCL, the respondent-KPTCL is to be fastened with liability. 70
(v) The action of the respondent in not disbursing the exgratia compensation in terms of the Government Order is an arbitrary action insofar as the very object of providing exgratia compensation stands defeated by non- disbursement. 'Electrical Accidents - A Consumer Guide to Claim Solatium' lists out the procedure for claiming solatium in case of electrical accidents. The relevant extract is reproduced below:
ELECTRICAL ACCIDENTS A CONSUMER GUIDE TO CLAIM SOLATIUM Protecting the interests of the electricity customers is one of the mandates of the Karnataka Electricity Regulatory Commission and also of the electricity companies. Despite several measures taken to protect customers from the hazards of electricity, accidents do occur leading to loss of life and property.
Electrical accidents may arise due to several reasons. Faulty equipments, live wires lying on the ground or hanging at arms length, overhead wires passing within reachable distance of human hands etc. are the major causes of accidents. Whatever be the reason, the result will be injury or death to human beings and animals.71
It is true that loss of limbs or life cannot be compensated. Yet it is the obligation of the electricity companies to provide some relief to the victim or his/her family members to mitigate the hardships. Over the years the erstwhile Karnataka Electricity Board and the Karnataka Power Transmission Corporation Limited have framed certain rules and regulations with regard to payment of compensation in case of electrical accidents.
However, consumers in general are not aware of these procedures, partly because these documents are inaccessible. Besides, the various procedural formalities are not available at a single source.
The Office of Consumer Advocacy of KERC has taken the initiative of providing consumers with necessary information on matters relating to the procedures to be followed and the documents to be submitted in case of claiming compensation in the following paragraphs.
STEP 1 As soon as the accident takes place, the consumer/victim or his/her relatives should inform, in writing on a plain paper, to the respective Section Officer of the respective Electricity Supply Company Limited. In addition, copies of the report should be submitted to the following officials:
Sub-Divisional Officer of the concerned Electricity Supply Company Ltd.72
Managing Directors of the concerned Electricity Supply Companies The address of ESCOMS is given at the end of this Manual.
Chief Electrical Inspector, Government of Karnataka, Mysugar Buildings, Jayachamarajendra Road, Bangalore - 560 002.
The accident should be reported within 24 hours from the time of occurrence of the accident.
STEP 2 In case of death of the victim, the following documents are to be collected by the kith and kin/relatives to claim compensation •Death Certificate (in original) •Postmortem Report •First Information Report (FIR) and Mahajar Report from the Police •Witness statement •Report from the Chief Electrical Inspector, Govt.of Karnataka •Legal heir certificate for payment of compensation •Detailed report of the accident by the section officer duly counter signed by the respective Sub Division officer.
Based on the documents, reports submitted and the investigations conducted 73 by the CEIG, the concerned electricity supply company will pay the compensation within TWO MONTHS from the date of receipt of the Report from the Chief Electrical Inspector, Government of Karnataka.
Wherever overhead lines are the cause of the accident/fatality, the electricity supply company shall pay the compensation without waiting for the report of the CEIG.
In case of non-reply from the electricity supply company even after THREE MONTHS from the date of submitting all the required documents/information, a copy of the claim for compensation along with the above documents may be forwarded to KERC.
The details about amount of compensation can be obtained from the jurisdictional Sub Divisional office of the Corporate Office of the electricity supply companies.
(vi) Accordingly, wherever accidents are caused due to overhead lines there is an obligation to disburse exgratia compensation without waiting for report of CEIG.
Even otherwise once the report under section 161 is submitted to the Supply and Distribution Company, compensation is to be disbursed forthwith. 74
VII Quantum of Compensation:
40. The compensation could be quantified in terms of settled principles as applied in Motor Vehicles Accidents cases. Solely on the ground that determination of compensation would involve certain factual consideration, that by itself will not be a ground to relegate the petitioners to the Civil Court as recorded supra. Taking note of the law laid down in Bhagyabai (supra) at Para 11, wherein the court has adopted the principles as applicable under the Motor Vehicles Act, compensation is determined in the present case following the same principle.
41. The Apex Court in United India Insurance Co. Ltd. v. Satinder Kaur20 has interpreted the law laid down in Pranay Sethi (supra) in light of the judgment of the Apex Court in Magma General Insurance Co. Ltd. v. Nanu Ram21, wherein, consortium was interpreted to include spousal consortium, parental consortium, as well as filial consortium.
20
(2021) 11 SCC 780 21 (2018) 18 SCC 130 75
42. The Apex Court while dealing with the compensation payable to children has enunciated principles in Mallikarjun v. Divisional Manager, National Insurance Co. Ltd. and Another22 and observations at Para 7, 8 and 12 are of relevance and are extracted as below:
"7. It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. As held by this Court in R.D. Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1 SCC 551 :
1995 SCC (Cri) 250] , while assessing the non- pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life, like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc. have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come.
8. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no 22 (2014) 14 SCC 396 76 income. The only indication in the Second Schedule for non-earning persons is to take the notional income as Rs 15,000 per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. The appropriate compensation for disability should take care of all the non-
pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc.
12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs 3 lakhs; up to 60%, Rs 4 lakhs; up to 90%, Rs 5 lakhs and above 90%, it should be Rs 6 lakhs. For permanent disability up to 10%, it should be Rs 1 lakh, unless there are exceptional circumstances to take a different yardstick." 77
43. Insofar as compensation as regards to children, the Apex Court has revisited the legal aspect in the case of Kajal v. Jagadish Chand and Others23. The Apex Court in Para 20 has observed that each case will have to be evaluated on the factual matrix available and has taken note of potentiality and has awarded future prospects. The Apex Court has also granted compensation under the head 'loss of marital prospects' and also 'attendant charges' by noting that attendants would be required to look after the child during hospitalisation as observed in Para 21 of the judgment.
44. In light of the above principles the calculation would be as under:
44.1 W.P.No.1383/2020
1. Age of the victim : 36 years
2. Occupation : Agricultural worker
3. No. of Dependents : Wife (34yr);
three unmarried daughters 12,15,17yrs); son (9yr) 23 (2020) 4 SCC 413 78
4. Monthly income : Rs.13,500/- (Claimed Income)
5. Multiplier : 15
6. Loss of dependency : 1/4 Calculation of Compensation are as follows:
(i) Towards loss of Income/salary:
The incident had occurred in the year 2018 and the notional income in the year 2018 as per the Schedule of Income notified by the Lok Adalath was Rs.12,500/-.
Deduction towards Personal and living expenditure shall be 1/4th of Rs.12,500 i.e., Rs.9,375/-, following the law laid down by the Apex Court in Sarla Verma (supra), wherein the Apex Court has held that the deduction towards personal and living expenses of the deceased should be one-fourth (1/4th) where the number of dependent family members is 4 to 6. Therefore the compensation under the head shall be calculated by using the formula [Monthly wages after deduction x Multiplier x 12] i.e., 9,375 x 12 x 15 = 16,87,500. Therefore compensation amount of Rs.16,87,500/- is awarded under this head.79
(ii) Towards Future Prospects:
In light of law laid down in Pranay Sethi (supra) addition of 40% shall be made towards income i.e., 16,87,500 x 40% = 6,75,000. Therefore compensation amount of Rs. 6,75,000/- is awarded under this head.
(iii) Loss Of Estate, Loss Of Consortium And Funeral Expenses:
The compensation under the head shall be awarded as follows:
Loss Of Estate : Rs.15,000/- Funeral Expenses : Rs.15,000/- Spousal consortium : Rs.40,000/-
Parental consortium : Rs.1,20,000/- (40,000 x 3) Total : Rs.1,90,000/-
Sl. Heads Amount
No Rs.
1. Loss of Income including Deduction 16,87,500/-
from Personal Expenses
2. Future prospects 6,75,000/-
3. Loss of estate, Loss of consortium 1,90,000/-
and Funeral expenses
Total Rs. 25,52,500/-
80
44.2 W.P. No.6087/2019
1. Age of the victim : 5 years 8 months
2. Disability : 80% burn with 40% deep burn
3. Amount received : BBMP Mayor Fund - 50,000/-
Wakfs Board - 1,00,000/-
2nd Respondent- 5,00,000/-
(Annexure- D, E, R4)
Calculation of Compensation are as follows:
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, etc.:
The child was treated as inpatient for nearly one and a half months for the following period from 16.09.2017 to 12.10.2017; 17.10.2017 to 18.10.2017; 24.10.2017 to 25.10.2017; 31.10.2017; 06.11.2017 to 09.11.2017;
14.112014; 21.11.2017; 28.11.2017. Records reveal the following:
i. 80% burn with 40% deep burn ii. On ventilation till 23.09.2017 iii. Frequent debridement and dressing of wounds iv. Medicines Following the observation made in Kajal (supra) the amount of compensation payable for the actual medical 81 expenditure incurred will be Rs.4,50,000/- and transportation charges incurred during the period of treatment would be Rs.50,000/-. Therefore the total compensation awarded under this head is Rs.5,00,000/-.
(ii) Loss of earning:
The child has suffered 80% burn injuries with 40% deep injuries, the injuries suffered will affect future earning of the child when compared to a normal child. Therefore, the loss of earning can be determined by taking into consideration of Notional Income in terms of law laid down in Kajal's case. The electrical accident occurred in the year 2017 and the Notional Income for the year 2017 was Rs.11,000. In terms of the law laid down by the Apex Court in Sarla Verma (supra), multiplier of 18 can be adopted.
With regards to deductions to be made on dependency, it is to be noted that from the present state of the child it is difficult to determine marriage of the child, therefore no deductions shall be made. Hence the compensation under the head works out to Rs.23,76,000/- (11,000 x 18 x 12).82
(iii) Attendant charges:
The child was hospatilised for almost one and a half month, it is pertinent to note that the victim being a 6 year old child he would require an attendant to carry out his daily routine. Therefore compensation amount of Rs.4,00,000/- is awarded under this head.
(iv) Pain and Suffering and Compensation for Disfigurement:
It is pertinent to note that the child had to undergo long term medical treatment. It is evident from Annexure-
Z and Z (1,2,3,4,5) that the child requires to undergo skin grafting and plastic surgery. Therefore an amount of Rs.5,00,000/- is awarded for Disfigurement.
(v) Loss of marriage prospects:
Rs.3,00,000/- is awarded under this head.
(vi) Future medical treatment :
The petitioner through memo dated 21.03.2022 has produced an estimate of future medical treatment which 83 amounts to Rs.10,06,050/-, therefore an amount of Rs.10,06,050/-, is awarded under this head.
Sl. Heads Amount
No Rs.
1. Expenses relating to treatment, 5,00,000/-
hospitalisation, medicines,
transportation, etc
2. Loss of earnings 23,76,000/-
3. Attendant charges 4,00,000/-
4. Pain, suffering, Compensation for 5,00,000/-
Disfigurement
5. Loss of marriage prospects 3,00,000/-
6. Future medical treatment 10,06,050/-
Total 50,82,050/-
Amount already received 6,50,000/-
Compensation awarded 44,32,050/-
44.3 W.P. No.53302/2018
1. Age of the victim : 13yrs (annexure-D)
2. Disability : 75% (annexure-F)
3. Amount received : Rs.2,50,000/- Annexure R8
Calculation of Compensation are as follows:84
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, etc.:
In annexure D (Report of Plastic Surgery Dept, Victoria Hospital) it is stated that the petitioner was hospatilised from 19.10.2017 to 27.11.2017. It further stated that the petitioner underwent elbow amputation. It is further submitted through memo Dated 08.07.2022 that a sum Rs.2,00,000/- was paid towards plastic surgeries. It was prescribed that post discharge the petitioner should attend regular dressing for two months. Therefore compensation amount of Rs.5,00,000/- is awarded including transportation expenses.
It is to be noted that the Apex Court in Mallikarjuna (supra), has held that in cases of disability additional compensation of Rs.4,00,000/- in addition to the actual expenditure incurred for treatment has to be awarded.
Therefore the total compensation under the above head works out to Rs.9,00,000/-.
85
(ii) Loss of earning:
The child has suffered permanent disability of 75% with amputation of left hand. Therefore, the loss of earning can be determined by taking into consideration of Notional Income in terms of law laid down in Kajal (supra). The electrical accident occurred in the year 2017 and the Notional Income for the year 2017 was Rs.11,000. In terms of the law laid down by the Apex Court in Sarla Verma (supra), multiplier of 18 can be adopted. With regards to deductions made on dependency, it is to be noted that from the present state of the child it is difficult to determine marriage of the child, therefore no deductions shall be made. Hence the compensation Rs.23,76,000/- (11,000 x 18 x 12) is awarded under this head.
(iii) Attendant charges:
The child was hospatilised for almost one month and her elbow was amputated therefore she would require an attendant to carry out her daily routine throughout her life.86
Hence compensation of Rs.5,00,000/- is awarded under this head.
(iv) Pain and Suffering and Compensation for Disfigurement:
Rs.5,00,000/- is awarded under this head.
(v) Loss of marriage prospects:
Rs.3,00,000/- is awarded under this head.
(vi) Future medical treatment :
The memo dated 21.03.2022 and 08.07.2022 provides the estimate of future medical treatment along with the cost of robotic arm. It is further provided that the petitioner has to undergo two surgeries amounting to Rs.2,00,000/- and robotic arm amounting to Rs.2,90,000/-, also to be taken into consideration as expenses incurred on medication.
Therefore, compensation amount of Rs.6,00,000/- is awarded under the above head.87
Sl.No Heads Amount
Rs.
1. Expenses relating to treatment, 9,00,000/-
hospitalisation, medicines,
transportation, etc
2. Loss of earnings 23,76,000/-
3. Attendant charges 5,00,000/-
4. Pain, suffering, Compensation for 5,00,000/-
Disfigurement
5. Loss of marriage prospects 3,00,000/-
6. Future medical treatment 6,00,000/-
Total 51,76,000/-
Amount already received 2,50,000/-
Compensation to be Paid 49,26,000/-
45. In light of the above discussion, I pass the following:
ORDER
(i) In W.P.No.53302/2018 the petitioner is entitled to receive compensation amount of Rs.49,26,000/- (See Para 44.3) The respondent no.2 shall deposit compensation to the tune of Rs.40,00,000/- in a fixed deposit in a nationalised bank for such a period till the petitioner attains majority. The interest payable on this amount shall be 88 released on quarterly basis to the father of the petitioner towards expenses to be incurred. The remaining compensation amount of Rs.9,26,000/- shall be released to the father of the petitioner to meet special needs such as medical and other expenses.
(ii) In W.P.No.6087/2019 the petitioner is entitled to receive compensation amount of Rs.44,32,050/-, (See Para 44.2) The respondent no.2 shall deposit compensation to the tune of Rs.29,00,000/- in a fixed deposit in a nationalised bank for such a period till the petitioner attains majority. The interest payable on this amount shall be released on quarterly basis to the father of the petitioner towards expenses to be incurred. The remaining compensation amount of Rs.15,32,050/- shall be released to the father of the petitioner to meet special needs such as medical and other expenses.
iii) In W.P.No.1383/2020 the petitioner is entitled to the sum of Rs.25,52,500/- by way of compensation (See para 44.1). The respondent No.1 shall deposit 89 compensation to the tune of Rs.12,76,250/- in a fixed deposit in a nationalised bank for a period of 05 years. The interest payable on this amount shall be released on quarterly basis to the petitioner-widow. The remaining compensation amount of Rs.12,76,250/- shall be released to the petitioner-widow to meet necessary needs.
(iv) The compensation stated above is to be paid within three months, in default of payment of compensation within the time prescribed, amount due would carry further interest at 6% per annum till date of payment.
(v) The right of the respondents to proceed against the joint tort-feasors or as against others as the case may be on the principle of contributory negligence is preserved to be exercised in accordance with law and such liberty would take care of the grievance of financial prejudice as made out by the respondents.
(vi) The application for impleading filed in W.P.No.1383/2020 (I.A.-1/2022 seeking to implead the 90 owner of the land) and the application filed in W.P.No.6087/2019 (I.A.-1/2020 seeking to implead the owner of the building as well as BBMP) are liable to be rejected.
vii) Before parting, after noticing the plight of dependents in W.P.No.1383/2020, wherein the dependents have lost their sole breadwinner on 22.02.2018 and have not received any amount of compensation till date, even under the Government Order dated 09.11.2017, it would be appropriate to direct as follows:
a) Whenever the report under section 161 is furnished to the Distribution/Supply Company, the exgratia compensation as per Government Order is to be paid within an outer limit of two months.
b) This is however subject to those cases where the accident is directly attributable to overhead lines in terms of the Consumer Guide to claim Solatium issued by KERC (Annexure-'G' in W.P.No.1383/2020), compensation is to be 91 paid under the Government Order without waiting for report of CEIG.
Accordingly, the petitions are disposed off.
Sd/-
JUDGE Np/-