Karnataka High Court
Pandurang S/O Bhimayya Ainapure vs The Managing Director, Gescom And Ors on 1 October, 2020
Bench: Krishna S Dixit, P.N Desai
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 01ST DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR.JUSTICE P.N.DESAI
WRIT APPEAL No.200139/2015 (GM-KEB)
Between:
Pandurang S/o. Bhimayya Ainapure
Age: 51 years, Occ: Agriculture,
R/o. Madakatti, Tq. Bhalki, Dist. Bidar.
... Appellant
(By Sri Ravi B. Patil, Advocate)
And:
1. The Managing Director,
GESCOM,
Main Road, Kalaburagi - 585 101.
2. The Executive Engineer (Elecl),
GESCOM, Bhalki - 584 101.
3. The Assistant Executive Engineer (Elecl),
GESCOM, Bidar - 584 101.
... Respondents
(By Sri Ravindra Reddy, Adv. for R1 to R3,
(VK filed only for R2 and R3)
This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act., praying to exercise the writ
Appellate Jurisdiction and be pleased to set aside order
dated:08.06.2012 passed by Learned Single Judge, in Writ
Petition No.83496/2009 and further pleased to allow the writ
petition.
2
This appeal coming on for Orders this day, Krishna S.
Dixit J., delivered the following:-
JUDGMENT
Appellant being the father who has lost his college-going-son because of electrocution has presented this appeal calling in question the judgment dated 08.06.2012 rendered by a learned Single Judge of this Court dismissing his W.P.No.83496/2009 (GM- KEB) on the ground that his earlier Writ Petition 24710/2005 for the same relief was negatived vide judgment dated 20.02.2006;
2. After service of notice, the respondents having entered appearance through their Panel Counsel resist the appeal making submission in justification of the impugned order.
3. Brief facts:
a) Appellant now a 60 year old farmer lost his 20 year old college-going-son Mr. Srinivas by 3 electrocution on the evening of 24.09.2000, having come in contact with a hanging live power line serviced to a private consumer; after enquiry and spot inspection, a KPTCL Engineer had submitted a Report to this effect;
in his first W.P.No.24710/2005 (GM-KEB) filed inter alia against the KPTCL, a learned Single Judge of this court vide judgment dated 20.02.2006 had directed consideration of his representation dated 02.07.2001 for the grant of compensation; however, in respect of other relief, the writ petition was rejected;
b) Subsequent to the above judgment of the learned Single Judge, petitioner had approached District Consumer Disputes Redressal Forum, Bidar in Complaint No.95/2005, which came to be disposed off vide order dated 26.12.2006, which directed consideration of his claim for compensation in terms of the said judgment; this order was put in enforcement in Execution Application No.6/2007, which came to be 4 closed on payment of a solatium of Rs.10,000/-, recording acceptance on protest of the appellant;
c) Appellant filed another case in W.P.No.83496/2009, which was dismissed by another learned Single Judge of this Court on 08.06.2012 on the ground of res judicata; aggrieved thereby, he has presented this writ appeal.
4. Contentions of the parties:
a) Learned counsel for the appellant argues that the impugned judgment of the learned Single Judge is bereft of legal & justice content; the appellant could not have been res judicated going by the text of judgment in the earlier writ petition; petitioner lost his son by electrocution which happened because of the negligence attributable to the respondents; Article 21 of the Constitution of India which guarantees a Fundamental Right to life & limb has been grossly violated; the respondents being an instrumentality of 5 the State is liable to pay the compensation for the life lost of the 20 year college-going-son; this aspect having not been adverted to by the learned Single Judge, appellant should be granted relief at least in the appeal, now, to decades having passed after his son met his Maker.
b) Learned Panel Counsel for the respondents vehemently contends that: appellant's earlier writ petition having been negatived, the impugned judgment founded on res judicata cannot be faltered; appellant has accepted a soltium of Rs.10,000/- for the loss of son's life; the contested version of the appellant that he lost his son because of electrocution cannot be adjudicated in writ jurisdiction; if at all, the appellant has any remedy, it can only be by a properly constituted Civil Suit; the appeal is presented with a long delay sans any plausible explanation therefor; so contending he seeks dismissal of the writ appeal.6
5. Having heard the learned counsel for the parties and having perused the appeal papers so also the copies of the Official Records made available at the Bar, we are inclined to grant indulgence in the matter and award compensation to the appellant as under and for the following reasons:
a) As to proof of electrocution:
i) The fact that on the eventful evening of 20.09.2000, the appellant lost his college-going-son because of coming in contact with a live Service line is established by the very Report dated 25.09.2000 of Sri R.G. Mathapati, who was the Assistant Executive Engineer of the KPTCL; the relevant paragraph of the Report reads as under:
"On detail enquiry to in-charge Section Officer late Sri Gundappa J.E. and villagers it was known that one of Lighting Installation Service wire detached due to heavy wind and rain and was hanging. The same might have touched to hole had got electrocuted the victim Sri. Srinivas S/o Pandurang ....Aged bout 20 years, on 24.09.2000 about 7.00 p.m."7
In fact, this Officer has drawn the very sketch of the scene of the event showing where the victim was lying on the basis of eyewitnesses version;
ii) Appellant's representation having been considered pursuant to direction of a learned Single Judge in his first W.P.No.24710/2005 disposed off on 20.02.2006, he had approached the District Consumer Dispute Redressal Forum, Bidar; he had also filed execution which came to be closed on the payment of Rs.10,000/- by way of solatium that was payable as per the extant guidelines then obtaining; if death had not occurred due to electrocution, it is ununderstandable why the solatium was given to the appellant who had lost his son; therefore, the first contention that there are disputed facts and the appellant should be relegated to Civil Suit cannot be countenanced since there is gross violation of Article 21 of the Constitution of India; it hardly needs to be stated that, a Writ Court is the 8 custodian of Fundamental Rights of the citizens and in the case of their violation remedy by way of Writ Petition cannot be resisted only chanting the mantra 'disputed facts' and 'alternative remedy';
b) As to alternate remedy of Civil Suit:
i) The Hon'ble Supreme Court and the High Courts are the custodians of inter alia Fundamental Rights of the persons under the Constitution; when those rights are violated and prima facie material in support thereof is placed on record, the aggrieved citizen cannot be relegated to ordinary Civil Court only on the self serving contention of the respondents who answer the wide definition of 'State' given under Article 12 of the Constitution that the case involves disputed facts; it hardly needs to be stated that more often than not, the version of dominous litis as to infringement of such rights is profitably disputed; the "State" under Article 12 of the Constitution and its instrumentalities 9 are expected to stand tall as "model litigants"; a writ court cannot wash off its hands only by accepting the ritualistic assertion of the other side that the case involves disputed facts; the writ remedies which the Constitution envisages would become redundant, should a contra proposition be countenanced; it is the power and duty of writ court to uphold Fundamental Rights by playing the role of 'sentinel on the qui vive', as iterated by the Apex Court in a catena of decisions;
the State and its instrumentalities should feel proud when they lose their defence and the citizens bag the justice due to them at the hands of the Courts, of course, in accordance with law; such a healthy culture reinforces faith of the citizens in the Rule of law, contradistinguished from Rule of men;
ii) The appellant lost his son two decades ago and has been fighting the legal battle one after the other, is borne out by the record; his first case in 10 W.P.No.24710/2005 was rejected by a learned Single Judge of this court vide order dated 20.02.2006 with the observation that his representation for grant of compensation was to be considered; his case in Complaint No.95/2005 before the District Consumer Disputes Redressal Forum, Bidar came to be disposed off on 26.12.2006 with some favourable observations not much helpful to him; thereafter he filed another case in Execution Application No.6/2007, which came to be closed on payment of a paltry sum of Rs.10,000/- when his claim was for Rs.3,50,000/- then; he had received this amount under protest as is borne out from the record; thereafter he filed W.P.No.83496/2009 (GM- KEB) which has been wrongly rejected by the impugned judgment by res judicating him when the doctrine was not applicable, in as much as either in the earlier writ petition or in his complaint to the Consumer Forum, any adjudication of the claim was not done at all; in every legal battle, the victory has eluded the appellant 11 and there has been a miscarriage of justice throughout, to say the least;
c) As to writ remedy and monetary
compensation:
Award of compensation for established
infringement of the indefeasible rights guaranteed under Article 21 has now become a conventional remedy availing in public law since the purpose of public law is not only to civilize public power and its exercise but also to assure the citizens that they live under a legal system wherein their rights & interests shall be protected and preserved; monetary compensation can be granted under Article 226 of the Constitution of India vide D.K. Basu Vs. State of West Bengal, AIR 1997 SC 610; compensation may be awarded so that something tangible may be procured to replace something of the like nature which has been destroyed or lost. Monetary award cannot, however, renew a physical frame that was in the june of it's life has been battered & shattered 12 due to negligence attributable to the State and its agencies vide R.D. Upadhaya Vs. State of A.P., AIR 2000 SC 1756; the citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be readily told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the writ courts; the Apex Court exhorted that 'new tools' need to be evolved for giving relief even in the realm of public law by moulding the same according to the myriad situations with a view to preserve & protect the rule of law vide Nilabatti Behara Vs. State of Orissa, (1993) 2 SCC 746;
d) As to delay in filing the writ appeal:
There has been long delay in presenting this appeal as rightly pointed out by the Panel Counsel for the respondents is true; the appellant has filed the application seeking condonation of delay; he has offered 13 a plausible explanation for the delay brooked in invoking appellate jurisdiction; the facts stated in the immediately preceding paragraphs above also constitute a sufficient explanation; if the delay is condoned, no prejudice would be caused to the other side and if not condoned, the appellant who has got a meritorious case would be put to enormous injustice and he would go home with penury at heart; after all condonation of delay would not add merits to the appeal and rob off the same from the defence of the other side; it hardly needs to be stated that no litigant is advantaged by delayed presentation of the appeal; it is not that had he filed the appeal in time, the same would have been heard and disposed off; at the most, the appeal papers would have been languishing in the cupboard of the Court, as the available pendency statistics show; after all, it does not befit the State and its instrumentalities to defeat the legitimate claim of a truly aggrieved citizen on the technical ground of delay & latches, subject to all just 14 exceptions into which the argued defence of the respondents does not fit; putra shokam nirantaram literally meaning that men mourn the death of their children ever; here is a father who has lost his son of a young age and all his relentless efforts have not yielded the fruit of justice; in such circumstance not condoning the delay would amount to placing premium on injustice; therefore the accompanying application is allowed and a long delay of 1028 days in filing the appeal is condoned; of course, such condonation is subject to the rider that no interest would accrue during the delayed period, as rightly insisted upon by the learned Panel Counsel for the respondents.
e) As to quantum of compensation:
Learned counsel for the appellant contends that a compensation in a sum of Rs.5,00,000/- with 12% per annum needs to be awarded; per contra, learned Panel Counsel for the respondent points out that the very 15 prayer in the writ petition itself is for a compensation of Rs.3,50,000/-; when violation of the Fundamental Rights like the one guaranteed under Article 21 of the Constitution is established, the lacune in the pleadings of the parties pale into insignificance; even in respect of the claim for compensation under the Motor Vehicles Act,1988 or the recompense under the law relating to land acquisition, courts have held that what has been claimed by the litigant is not decisive and that more than what has been claimed can be granted; that being the position, the respondents cannot ask the court to restrict the award of compensation to Rs.3,50,000/- as claimed in the writ petition; a father who has lost his young son cannot be put to prejudice by the lack of lawyering skills of his counsel; this apart, in the representation given to the respondents, the appellant has claimed Rs.5,00,000/- as compensation; a judge of this court in W.P.No.203626/2015 (GM-KEB) between Sri Bhailappa Vs. The Asst. Engineer, HESCOM & Anr., 16 decided on 04.03.2020 has awarded a compensation of Rs.5,00,000/- to a claimant who had suffered imputation of both the hands because of electric shock; this case provides a kind of yardstick for measuring the amount of compensation to be awarded; in our considered view, an equal sum would do justice to both the sides, especially when there is no dispute that in the extant guidelines framed by the KPTCL, same sum is prescribed as compensation n the case of death.
In the above circumstances, this appeal succeeds; the impugned judgment having been set at naught, appellant's Writ Petition No.83496/2009 (GM-KEB) is allowed; a Writ of Mandamus issues directing the first respondent to pay to the appellant a sum of Rs.5,00,000/- (Five Lakh) only within six weeks with interest at the rate of 9% per annum to be reckoned from the date of accident till payment; however, no interest would accrue during the period of delay of 1028 brooked in filing the appeal.17
If the compensation/damages as directed above is not paid in time, the respondents shall be liable to pay an additional interest at the rate of 2% per mensem on the delayed payment, which may be recovered from the erring officials, in accordance with law.
Now, no costs.
Sd/-
JUDGE Sd/-
JUDGE BL