Delhi District Court
Usha Kumari vs Bses on 29 May, 2025
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 127/2017
CNR No. DLNE01-006967-2016
1. Usha Kumari
W/o Sh. Kure Singh
2. Ritesh Kumar
S/o Sh. Kure Singh
Both residents of H. No. I-21, Gali No. 5,
Surya Vihar, Shahdatpur, Karawal Nagar,
Delhi. .....Plaintiffs
Versus
1. BSES Yamuna Power Limited,
Through it's Managing Director
Principal Secretary, Shakti Kiran Building,
Karkardooma, Delhi-92.
2. Reliance General Insurance Co. Ltd.
Office at 14th Floor Vijaya Building
Barakhamba Road, Connaught Place,
New Delhi.
3. M/s P. K. Electric Works
Through it's Prop. P K Gupta
Office at: F 25, West Jyoti Nagar,
Delhi. ..... Defendants
Date of Institution : 20.05.2017
Date of Reserving Judgment : 28.05.2025
Date of Judgment : 29.05.2025
JUDGMENT
1. The present suit has been filed by the plaintiffs against the CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 1 of 36 defendants seeking the compensation under the Fatal Accident Act.
2. Plaint 2(a). Brief facts, as stated in the plaint are that Delhi Government had brought the Delhi Electricity Act 2000, whereby, private players such as Bombay Suburban Electric Supply Limited (in short BSES), Reliance and Tata company et cetera, were allowed in distribution and supply of electricity. It is stated that as per memo of understanding private players would lay their poles and effective network of wires for distribution and supply of electricity. It was also agreed that for loss of human life and injury caused by the wires/poles these private players would be responsible to pay the compensation. As, per the Electricity Rules 1956, as well as 2010, it is expected from these private players that they will ensure that proper distance of their wires from the building be maintained alongwith earthing lines must be laid so that in case there is fault emerged in the electricity lines or something falls on electricity lines there will be automatic tripping of the system. Furthermore, as per provision 44-A of the Indian Electricity Rules 1956, whenever, there is loss of human life, the intimation will be given by telegraphic report within twenty four hours and within forty eight hours by written report to the electrical inspector of the labour department.
2(b). It is further stated that the plaintiff had purchased a plot of 65 square yards and started residing with her family in the year 2013. One Idle Pole of small height made of cement material was installed in the plot of the plaintiff by defendant number 1 and at that time pole was not carrying any electric wires. That cemented pole was also not in symmetry with the other poles installed in the street and was affixed behind the other poles of the street. It is further stated that the husband of plaintiff had given a notice, dated 26.02.2025, to defendant number 1 requesting them to remove the CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 2 of 36 above said pole as it was installed in his plot and thus was causing hindrance in the construction of house. It is further stated that the defendant number 1 instead of removing the said idle pole replied on 27.05.2015, and asked the plaintiff to start the construction 1.2 m behind the said pole. It is further stated that the officer of defendant number 1 had failed to look into the provisions of the electricity rules that the above said provision would be attracted only where the pole is electrified. The construction of the house was completed in the year 2015 and till that time no electric wires were affixed on the pole in question. It is further stated that other sons of plaintiff had also visited the office of defendant number 1 number of times and requested them to remove the above said idle pole from their land, but, the official of the defendant number 1 did not pay any heed. It is further stated that as there was no electricity or wires on the pole so the plaintiff had got affixed a box to keep the brooms et cetera in it and also used to keep Bajra for pigeons, sparrows and crows in the pots above the box.
2(c). It is further stated that in the year 2016 in the absence of plaintiff officials of defendant number 1 installed street light on the cemented pole and connected it with service line. The family members of the plaintiff visited the office of defendant number 1 several times and expressed their protest. It is further stated that on 31.07.2016, Deepak, one of the sons of plaintiff at about 10.30 am, was cleaning and removing the dust and droppings of the birds from the box. In that process the hand of Deepak touched the pole, accidentally, which was charged as the wires on the pole were worn out. It is further stated that because of which Deepak suffered a heavy electric shock, fell down in the street and became unconscious. It is further stated that Deepak was taken to Guru Teg Bhadur Hospital where doctors tried to revive him, but, remained un-successful and then Deepak succumbed to electric shock at 11.30 am. It is further stated that his dead CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 3 of 36 body was taken into possession by the police of Police Station Karawal Nagar and they had got conducted autopsy. It is further stated that in the autopsy doctor had confirmed that the deceased had expired due to electrocution. It is further stated that this incident had taken place due to wrongly affixing the pole in the property of the plaintiff which was not initially electrified and the same was electrified after the construction of the property as mentioned above which was not permissible as per the law. It is further stated that the defendant number 1 had taken a stand before the police that the maintenance of the above said pole was handed over to the defendant no 3 on contract basis and in case there is any dereliction of duty on the part of the contractor then the defendant number 3 is liable to pay the compensation.
2(d). It is further stated that the defendant number 1 had also got insured the abovesaid pole with the defendant number 2 to indemnify the loss suffered by the family of the victim. Thus all the defendants are liable to pay the compensation to the plaintiffs. However, the primary liability is of the defendant number 1 and in case there is an indemnity clause in the agreement by way of insurance policy with the defendant number 2 or with the contractor in relation to the above said accident, then the defendant number 2 and 3 will be liable to pay the compensation. It is further stated that electrical inspector had opined that the above said incident had occurred due to poor maintenance of the pole in question and the defendant number 1 failed to follow the Electricity Rules of 1956 and 2010 as well. It is further stated that the principles of absolute liability will be applicable. It is further stated that plaintiff number 1 is the house wife and mother of deceased, plaintiff number 2 is the younger brother of the deceased and they both were dependent upon the income of the deceased. The deceased a bachelor, was B.Com pass and had also completed two computer courses, namely, Computer Accountant and Computer Telly. The CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 4 of 36 deceased had also appeared in Probationary Officers examination of the banks and qualified twice, but, was unsuccessful in interviews. Before his death deceased had also appeared and cleared the exam of Assistant Grade. It is further stated that the deceased helped in running the household as he was working in LNJP hospital as Lower Division Clerk on contract basis for the last 4 years and was drawing the salary of rupees 15,700/- per month. There was every possibility that Late Deepak was absorbed permanently in the said hospital as there is a policy of the government to confirm the employees who were working for last five years. Apart from this, deceased Deepak used to take tuitions classes at his home in evening, on holidays and used to earn an amount of rupees 10,000/- per month. It is further stated that the deceased Deepak used to contributed an amount of rupees 20,000/- per month for house hold expenses. It is therefore requested that a decree of money in the sum of rupees 30,00,000/- alongwith interest at the rate of 12% per annum be passed in favour of plaintiff and against the defendants alongwith cost of the suit.
3. Written statement 3(a). Written statement on behalf defendant number 1 was filed in which apart from denying the contentions made by the plaintiff by way of his plaint, it is stated that the accident in question did not occur due to negligence on behalf of defendant number 1 as alleged. It is further stated that the defendant number 1 had already given the contract inter-alia of maintenance of street lights in the area in question to M/s Pee Kay Electric Works that is defendant number 3 and hence liability, if any, is that of defendant number 3. It is further stated that the defendant number 1 is not able to pay compensation for the negligence of others or where accident was not due to any fault of distribution company or where the cause of the accident was not distribution company. It is further stated that the plaintiffs CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 5 of 36 had miserably failed to place any document pertaining to their ownership/description of the property or qua the dimensions of the property. It is further stated that vide letter, dated 28.03.2015, it is evident that the pole in question was not on the plot of plaintiff, but, on the road/street. It is further stated that the plaintiff had indulged in illegal construction around the pole by covering/bringing the pole inside their property. It is further stated that on the ground floor a slab was constructed around the pole and in illegal manner covered the pole in question which was constructed years back. It is further stated that in order to construct the illegal chajja on the first floor, plaintiffs illegally broke/damaged/destroyed the pole in question. It is further stated that the structure alleged to be a box was in realty an extended chajja over the pole already erected and constructed for the purposes of street light. It is further stated that there is no question of taking the permission from the plaintiffs as the street light was not installed on government land/road.
3(a)(i). It is further stated that the Municipal Corporation of Delhi after installing/energizing the street light handed over it's maintenance to defendant number 1. It is further stated that the street light was existing on pole even prior to the illegal construction by the plaintiffs. The upper portion of pole was broken/damaged/destroyed by plaintiffs or by the husband of plaintiff number 1 in such a manner that the street light came below the illegally extended chajja. It is further stated that the BSES came to know about the same somewhere in June 2016 and immediately reported the matter to Station House Officer, Police Station Karawal Nagar vide letter, dated 10.06.2016. It is further stated that the plaintiffs were given notice on 27.05.2015 qua their unauthorized occupation of electric pole. It is further stated that on the fateful day, the victim was cleaning the house windows with the help of water pipe by standing on the stairs which was at a 5 feet height. It is further stated that while cleaning, deceased CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 6 of 36 suddenly got dis-balanced and fell from the height resulting into head injury and ultimately he expired. It is further stated that the father of plaintiff number 2 and husband of plaintiff number 1 is the person who has been running the house and upon whom the entire family was dependent and is still dependent. It is further stated that the husband of plaintiff number 1 is getting a handsome amount of pension and deceased never ever contributed towards the household expenses. Therefore, the case of plaintiffs be dismissed.
3(b). Separate written statement was filed on behalf of defendant number 2 in which defendant number 2 without admitting the factum of accident stated that the defendant number 2 is liable to indemnify only that loss which is admitted by M/s. BSES Yamuna Power Limited subject to insurance policy which is effective on claim made basis. It is further stated that any claim notified by the insured or any summons by Court after 01.04.2017, is not covered in this policy irrespective of the accident date/loss of date/or summons date. Since as per paragraph number 6 of claim petition, the date of incidence is 31.07.2017 and case was reported after the expiry of Insurance Policy number 1301362713000060 which was effective for the period 02.04.2016 to 01.04.2017 therefore, the claim is not admissible and Reliance General Insurance Company Limited is not liable to indemnify any loss to insured and to pay compensation to plaintiffs. It is further stated that the plaintiff in collusion with Investigating Officer lodged false First Information Report against BSES Yamuna Power Limited since accident if any was caused due to the self negligence of deceased Late Deepak. It is further stated that the deceased Late Deepak while, cleaning window negligently with the help of water pipe by standing on the stairs which was at a 5 feet height got dis-balanced and fell down from height resulting into head injury. It is further stated that the plaintiffs are not entitled to any compensation for deceased's own CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 7 of 36 negligence. It is also stated that there exists an excess clause that is an amount of rupees 5,00,000/- was fixed for each and every claim. Under these circumstances no cause of action has arisen against defendant number 2 and the suit of plaintiff is liable to be dismissed. 3(c). Written statement was also filed on behalf of defendant number 3 in which apart from denying the contentions raised by the plaintiffs through their suit, it is stated that the defendant number 3 has no concern with the fixation of the pole and it's site, but, it is necessary to submit that the poles which belong to defendant stand affixed in the symmetry and there was nothing wrong in their affixation. The allegations regarding the pole electrified and request being made are also baseless and even otherwise, the answering defendant has no concern with the alleged complaint or its receipt. It is further stated that the deliberate extensions in construction were made where the electricity poll existed. The owner/occupier of the property at their own risk and against the building by-laws raised the construction touching the electricity pole. The construction over and above the pole was illegal and unauthorized without any sanction/permission from the necessary authorities. It is further stated that the owners of the property on their own had put their life to risk by joining their constructed portion to the street pole in lust of occupying the public land and the death which occurred due to their own wrongs and negligence is being burdened upon defendant number 3. It is further stated that the defendant number 3 is a contractor with the defendant number 1 and in no manner under any obligation to any third parties. It is further stated that the affixation of pole and the lines passing thereby are the matters which are direct concerns the defendant number 1. It is further stated that the contract with the defendant number 3 is that of maintenance and not of installation of poles and lines passing thereby. It is further stated that even if it is assumed that there is a contract between the defendant number 1 and defendant number CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 8 of 36 3, the said contract does not entitle the plaintiffs to raise the claim qua defendant number 3. It is therefore requested that the plaintiffs cannot claim anything against defendant number 3.
4. Replication Rejoinder to the written statement of defendant number 1 and 3 was filed by plaintiff which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statement.
5. Issues On the basis of pleadings, the following issues were framed:-
(i) Whether the death of Deepak was caused due to the negligence of the defendants? OPP
(ii) Whether the plaintiffs are entitled to any compensation if so to what amount and from which defendant? OPD
(iii) Relief.
6. Plaintiffs' evidence 6(a). Plaintiffs have led their piece of evidence. Sh. Mukesh Kumar Sharma, Electrical Inspector (notified under section 162 of the Electricity Act), 5, Shamnath Marg, Delhi was examined as PW1. PW1 deposed that he had been working as an Electric Inspector, GNCTD, Labour Department, Delhi. PW1 deposed that his office received the information about the aforesaid accident which was given by Sh. C.P. Singh, AsVP, BYPL, on 02.08.2016. PW1 further deposed that he conducted the inspection of the street light electric pole, Karawal Nagar, Delhi alongwith Sh. Daya Ram, Electric Overseer, on 02.08.2016. PW1 further deposed that at the time of inspection, some officials from BYPL and Police Station Karawal Nagar were also present. PW1 further deposed that at the time of CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 9 of 36 inspection, some technical deficiencies were observed and detail technical report was prepared and issued to Station House Office, Police Station Karawal Nagar, Delhi, on 05.10.2016. The copy of report is Ex.PW1/1 (two pages) (OSR). PW1 was cross examined at length by Learned Counsel for defendant number 1. During the course of his cross examination, PW1 submitted that the BSES had provided him the information regarding the accident and the same is Ex.PW1/R1 (colly, three pages). PW1 submitted that Ex.PW1/R-1/X (colly, five photographs) were the photographs of the site. PW1 admitted that had there been a platform then the accident would not have occurred even if there was leakage of the current and proper earthing had been provided for the fitting.
6(a)(i). During the course of his further cross examination by Learned Counsel for respondent number 3, PW1 admitted that on the day of inspection no leakage was found as the same was rectified. PW1 submitted that the officials of BSES had provided him the faulty choke at the time of inspection. PW1 further submitted that it was told to him by BSES/BYPl officials that the same choke was replaced after the occurrence of accident. PW1 further submitted that the height of the faulty choke from the road was about three meters. PW1 voluntarily said that in this case there was a platform made in front of the house, from the same platform the electric light fixture was accessible, fixture was having a metallic clamp and pipe through which the leakage of current could travel.
6(b). Manoj Kumar Gupta, Assistant Manager, Syndicate Bank, NPL Pusa, Delhi was examined as PW2. PW2 produced the statement of accounts pertaining to salary record of deceased Late Deepak Kumar with effect from June 2013 to September 2016. PW2 deposed that the statement of account was verified by him personally from the original record as per the Banker Evidence Act. The same is Ex.PW2/1 (colly, six CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 10 of 36 pages) and bearing the signatures of Branch Manager at point A and signatures of PW2 at point B. PW2 was cross examined by Learned Counsels for defendants.
6(c). Ms. Rajni Malhotra, Lower Division Clerk, Delhi Nursing Council, Ahilyabai College of Nursing Building, New Delhi was examined as PW3. PW3 deposed that the deceased Late Deepak Kumar having date of birth 23.05.1988 was working with their office as Lower Division Clerk on contract basis with effect from 03.06.2013 till 29.11.2013. PW3 further deposed that then there was a break and he was again appointed as Lower Division Clerk from 03.12.2013 to 30.05.2014 then there was a further break and he was again appointed as Lower Division Clerk from 03.06.2014 to 02.05.2015. PW3 further deposed that he was again appointed as Lower Division Clerk from 05.05.2015 to 01.04.2016. He was again appointed as Lower Division Clerk with effect from 04.04.2016 to 03.03.2017. PW3 further deposed that he was drawing the salary at the beginning of rupees 4,668/-. Then his salary after further appointment was rupees 14,004/- from July 2013. Since December 2013, Provident Fund was made applicable with effect from December 2013 and then his salary was increased to rupees 14,782/-. In July 2016, his salary was rupees 17,505/- (inclusive of Employee Provident Fund). He was Graduate. He was also entitled for increased DA (Dearness Allowance). PW3 further deposed that the whole of the record pertaining to deceased Late Deepak Kumar is Ex.PW3/1 (colly, 103 Pages). PW3 produced the original record and the photostat copy of same was compared with the original which was correctly identified by the witness. PW3 cross examined at length by Learned Counsels for defendants.
6(d). Plaintiff number 1 Smt. Usha Kumari was examined as PW4. She reiterated the facts as are mentioned by her in her plaint. Thereafter, she tendered her evidence by way of affidavit which is Ex.PW4/A and relied CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 11 of 36 upon the following documents that are copy of voter I card of plaintiff number 1 as Ex.PW4/1, copy of voter I card of plaintiff number 2 as Ex. PW4/2, copy of testimonials of deceased Late Deepak as Ex. PW4/3 (colly, 8 pages), copy of certificate of Bachelor of Computer Applications of deceased Late Deepak as Ex.PW4/4, copy of roll number of Bank Probationary Officer Exam as Ex.PW4/5 (colly, two pages), copy of certificate of Telly course done by deceased Late Deepak as Ex.PW4/6 and copy of General Power of Attorney, agreement to sell, affidavit, copy of receipt, possession letter and Will in favour of plaintiff number 1 Smt. Usha Kumari as Ex.PW4/7 (colly, 18 pages). PW1 was cross examined at length by Learned Counsel for defendant number 1 as well as Learned Counsel for defendant number 2. During the course of her cross examination, PW1 denied the suggestion put to her that while constructing the house they had broken the pole from the top and shifted the electricity lights below the balcony.
6(e). Dr. Aditya Anand, Junior Demonstrator, Guru Teg Bahadur Hospital was examined as PW5. PW5 deposed that on 01.08.2017, he was posted as Junior Resident in the abovesaid Hospital. On that day, he had received a body of one Deepak Kumar, aged about 28 years male for carrying out the postmortem of body. PW5 further deposed that he had carried out the postmortem of Deepak Kumar and given his detailed report. The photocopy of same is Ex.PW5/A bearing his signatures at point A. PW5 deposed that the photocopy is the correct copy of original. PW5 deposed that as per the postmortem report, the cause of death was shock as a result of antemortem electrocution. PW5 was cross examined at length by Learned Counsel for defendants.
6(f). Head Constable Shyamvir was examined as PW6. PW6 produced the record of First Information Report bearing number 257/2016, dated 31.07.2016, under sections 285/304A of Indian Penal Code, Police Station CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 12 of 36 Karawal Nagar. PW6 deposed that the First Information Report was written and signed by Assistant Sub Inspector Shiv Shankar. PW6 further deposed that since he had been working in the said police station so he was well conversant with his signature and handwritings. PW6 further deposed that the said First Information Report was prepared on the basis of statement of Kude Singh son of Rati Ram Singh. On the basis of statement and further proceedings, the Investigating Officer had sent the rukka and on the basis of rukka, the said rukka was entered in the computer and the present First Information Report was verbatim of the said information given by the Investigating Officer. PW6 further deposed that no interpolation was done with the rukka. The copy of abovesaid First Information Report is Ex.PW6/A. The rukka was entered in computer by Head Constable Anjula, PIS number 28000526, Police Station Karawal Nagar, dated 31.07.2016 under sections 285/304A of Indian Penal Code. 6(f)(i). PW6 further deposed that the police station had received the information on telephone by Head Constable Ramesh Chander (number 474/NE) from Police picket of Guru Teg Bahadur Hospital to the police station that the admitted patient Deepak Kumar s/o Kude Singh, aged about 28 years r/o I-21. Gali number 5, Surya Vihar, Karawal Nagar, Delhi was declared as brought dead. On the basis of aforesaid telephone information, Daily Diary number 12A was prepared and was also entered in the daily register/rojnamcha, on 31.07.2016, of the aforesaid police station and said copy is Ex.PW6/B. PW6 further deposed that the abovsaid Daily Diary entry was prepared by Head Constable Anjula who was the Duty Officer on the said date in the said police station. PW6 further deposed that after receiving of the information, the aforesaid case was handed over to Assistant Sub Inspector Shiv Shankar for the investigation, who also entered in the daily register by way of Daily Diary number 36B. The copy of same is Ex.PW6/C. PW6 further deposed that CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 13 of 36 subsequently one Kude Singh gave a complaint for rectification in the statement given in the First Information Report and the said complaint was entered in the daily register vide number 38B dated 02.04.2017, and the copy of same is Ex.PW6/D. The said complaint was transferred to the Reader of Station House Officer who maintained the record of complaint given from time to time. The copy of Dairy Diary number 38B dated 02.04.2017 is Ex.PW6/E. 6(g). Sh. Kure Singh was examined as PW7. PW7 in his examination in chief deposed that the plaintiff number 1 purchased a plot number I-21, Gali number 5, Surya Vihan, Shahdabpur, Karawal Nagar, Delhi measuring about 65 square yards in the year 2013. PW7 deposed that one cemented idle pole of defendant number 1 was installed in the plot of plaintiff. The said cemented pole was not carrying any electric wires and was of small height. PW7 further deposed the said cemented pole was not in symmetry with the other poles installed in the street and was affixed behind the other poles of the street. PW7 further deposed that since the abovesaid pole was not electrified the PW7, husband of plaintiff number 1 gave a notice, dated 28.03.2015 to defendant number 1 in it's office which was received on 01.04.2015 requesting defendant number 1 to remove the said pole as it was installed in his plot and was causing hindrance in construction of the abovesaid plot. Thereafter, PW7 deposed similarly as that of PW4 or say deposed the same facts as are mentioned the plaint. Alongwith PW7 also deposed that he got registered the First Information Report against the official of defendant number 1 on the same day vide number 0257 dated 31.07.2016 under sections 285/304A of the Indian Penal Code. PW7 had also mentioned in the report before the police that the current was leaking from the street light and it's pole and clamp.
6(g)(i). PW7 further deposed that the Electrical Inspector had also inspected the abovesaid pole and found that no earthing was done due to CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 14 of 36 which the pipe and choke had become live and if the same were touched then the person would get the current. PW7 further deposed that before the visit of Electrical Inspector on 02.08.2016, the officials of defendant number 1 changed the choke and had also done the repair of the said pole. However, there was no earth connection for the said electric pole and hence, all the metallic street light fittings attached to the said pole had not been earthed. Thereafter, PW7 tendered his evidence by way of affidavit which is Ex.PW7/A and relied upon the following documents that are rectification application for correction in the statement of First Information Report bearing number 257/2016 which was given in Police Station Karawal Nagar on 02.04.2017 already exhibited as Ex.PW6/E, copy of First Information Report bearing number 257/2016 already exhibited as Ex.PW6/A, an application given to the office of BSES Gokalpuri, Delhi for removal of the pole installed in the home of plaintiff as Ex.PW7/1. PW 7 was cross examined at length by Learned Counsel for defendants. During the course of his cross examination, PW7 submitted that the plot in issue was constructed into a single dwelling house.
6(h). Sh. Jagpal Singh was examined as PW8. PW8 during his examination in chief deposed that his children, namely, Arushi, aged 14 years, Harshit aged about 13 years, Dev Kumar aged about 11 years used to take tuitions from deceased Late Deepak Kumar. PW8 further deposed that the testimonials of his children are Ex.PW8/1 (colly). Thereafter, PW8 tendered his evidence by way of affidavit which is Ex.PW8/A and relied upon the following documents that are copy of assessment record/achievement record of Aarushi, Harshit and Dev Kumare with copy of identity cards as Ex.PW8/1 (colly, 18 pages) and copy of aadhar card of PW8 is Ex.PW8/2. PW8 was cross examined at length by Learned Counsels for defendants.
6(i). Assistant Sub Inspector Dinesh Chand was examined as PW9. PW9 CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 15 of 36 produced the summoned record pertaining to register of complaint Daily Diary number 38B at serial number 22/1PP dated 02.04.2017 registered by Kure Singh and same was marked to Assistant Sub Inspector Shiv Shankar of Police Station Karawal Nagar. The photocopy of the relevant entry is Ex.PW9/A. PW9 was cross examined by Learned Counsel for defendants.
Defendants' evidence 6(j). Defendants have led their piece of evidence. Sh. Anil Kumar, AMO (Street Light), BSES was examined as D1W1. D1W1 tendered his evidence by way of affidavit which is Ex.D1W1/A and relied upon the following documents that are copy of letter, dated 01.08.2016 signed by Sh. C.P. Singh as Ex.D1W1/1 (OSR), copy of letter, dated 01.08.2016 signed by Sh. C.P. Singh received by Assistant Electrical Inspector as D1W1/2, copy of letter, dated 08.08.2016 signed by Sh. C.P. Singh addressed to Assistant Electrical Inspector as Mark D1W1/3, accident report, dated 08.08.2016 as Ex.D1W1/4 (OSR), five colour photographs as Mark D1W1/5 (colly). D1W1 was cross examined at length by Learned Counsel for plaintiffs. During the course of his cross examination, D1W1 submitted that he had mentioned in his evidentiary affidavit Ex.D1W1/A that the street light at the site in question installed by the Municipal Corporation of Delhi and the maintenance whereof was handed over to BSES. D1W1 admitted that he had not filed any document to show that the abovesaid pole in question was installed by the Municipal Corporation of Delhi and the maintenance was handed over to BSES. D1W1 further submitted that he did not know that a complaint, dated 27.03.2015 was received in the office of Gokal Puri of BSES by plaintiff that the abovesaid pole was affixed in the premises of plaintiff. D1W1 further submitted that he did not know whether his office took any action on the said complaint. D1W1 further submitted that he did not know whether his company issued CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 16 of 36 a false notice, dated 27.05.2015 to Kude Singh to start the construction after leaving the place 1.2 meter. D1W1 further submitted that he did not know whether his department lodged a false report, dated 10.06.2016 with Station House Officer, Police Station Karawal Nagar that Kude Singh had broken the street light pole.
6(k). Sh. Mahabir Singh was examined as D1W2. D1W2 in his examination in chief deposed that prior to aforesaid letter the BSES vide it's notice, dated 27.05.2015 had duly intimated plaintiff to remove unauthorised construction. D1W2 further deposed that the pole with street light was an old pole with street light over it. D1W2 further deposed that the BSES came to know that the same was broken and illegally construction had taken place around it somewhere in June 2016 and immediately reported the matter to the Station House Officer, Police Station Karawal Nagar vide letter, dated 10.06.2016. D1W2 further deposed that the Electrical Inspector prepared report, but, as the same did not contain the true fact as such BSES had issued letter, dated 25.10.2016. Thereafter, D1W2 tendered his evidence by way of affidavit which is Ex.D1W2/A and relied upon the documents that are copy of letter, dated 27.05.2015 which is already exhibited as Ex.PW14/R1/A on 07.07.2018 and the same was signed by D1W2 at point X, copy of letter, dated 10.06.2015 which is marked as Mark D1 and the same was signed by D1W2 at point B and by Sh. Tripathi at point A, copy of letter, dated 01.08.2016 which is marked as Mark D3 and the same was signed by Sh. Sanjay Kumar at point A and copy of letter, dated 25.10.2016 which is marked as Mark D3 and the same was signed by Sh. Sanjay Kumar at point A. D1W2 deposed that when he filed the affidavit, he was working with BSES as DGM ( O & M), at Division Karawal Nagar, Delhi. D1W2 further deposed that he had since retired, on 31.12.2021 hence, he was not in position to get the original documents. D1W2 was cross examined at CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 17 of 36 length by Learned Counsel for plaintiff. During the course of his cross examination, D1W2 admitted that he had not filed any document to support his version that the pole in question was already in existence. D1W2 further admitted that their office that is BSES had not filed any document to support the version that the abovesaid pole in question was the property of East Delhi Municipal Corporation.
6(l). Head Constable Harkesh Kumar from Police Station Karawal Nagar was examined as D1W3. D1W3 deposed that the summoned record upto 31.12.2013 had been destroyed vide office order number 20092-20191/HAR/NED dated 06.06.2022. Copy of said order is Mark A. D1W3 was cross examined by Learned Counsel for plaintiff. 6(m). Sh. Pramod Gupta, proprietor of defendant number 3 was examined as DW3. DW3 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW3/A. DW3 was cross examined at length by Learned Counsel for plaintiff. During the course of his cross examination, DW3 submitted that he had filed the written statement on behalf of abovesaid firm which is a proprietorship concern. DW3 admitted that the maintenance of the place of incident was with him. The complaint in relation to fault of the equipments and wires were registered with BSES portal and subsequent the same were transferred to their labours. DW3 further submitted that for whole of the contract 74 persons were employed. DW3 further submitted that the trained labours who were also having experience were employed and some little qualified. The repair and maintenance work were to be done by their labourers. DW3 was shown the agreement, dated 25.04.2016 which is marked as DW3/DX.
7. Arguments I have heard the arguments advanced on behalf of parties and CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 18 of 36 perused the case file carefully.
7(a). Written submissions as well as additional written submissions have been filed on behalf of plaintiffs and once again contents of plaint as well as evidence are reiterated. It is once again emphasized that the plaintiff gave a notice to defendant number 1, on 26.12.2015 to remove the pole in question as it was creating hindrance in construction of the plot. It is further stated that in the rejoinder, it was clarified that the date of notice was wrongly mentioned in plaint as 26.02.2015, whereas, the correct date is 28.03.2015 and the notice was received by defendant number 1, on 01.04.2015. It is further stated that the defendant number 1 replied the abovesaid notice by saying that the plaintiff would start the construction of his house after 1.2 m away from the said pole. It is further stated that the construction of the house was completed in the year of 2015 and till then the pole was not electrified. It is further stated that the sons of plaintiff visited the office of defendant number 1 number of times and requested to remove the pole from their land, but, the officials did not pay any heed. It is further stated that the principle of absolute liability was invoked as defendant number 1 was dealing with dangerous activity which is endangerous to human life. As per absolute liability the industry is liable to pay compensation whether there is no fault on the part of industry. It is further stated that alongwith written statement one notice, dated 27.05.2015 was annexed, wherein, it was mentioned that all the building structures varanda, chajja should be 1.2 m away from the electricity mains. It is further stated that another letter, dated 10.06.2016 was also written by BSES to Station House Officer mentioning the PCC pole upon which there was no transformer or service line, but, half of the pole was broken by the plaintiff. It is further stated that DIWI in second paragraph of his cross examination, dated 09.09.2022 had admitted that he had not filed any document to show that the pole in question was installed by the CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 19 of 36 Municipal Corporation of Delhi and only the maintenance was handed over to BSES. It is further stated that in the present case the onus was on BSES to prove that the pole in question was on public land, but, BSES failed to prove the same. It is further stated that the defendant number 1 did not summon the Municipal Corporation of Delhi and failed to produce any evidence to prove that pole was on the public land. It is further stated that PW1 had also mentioned in it's report that BSES staff had shown him the old energy meter with box which was replaced by new one and on examination of terminal of single Miniature Circuit Breaker which was fixed inside the meter box was found burnt. Old electric choke was also shown to him and upon testing the electric choke with the help of electrical installation it was showing leaking of current.
7(a)(i). It is further stated that the incident had taken place, on 31.07.2016 and the inspection was conducted by PW1, on 02..08.2016 which proved their negligent behaviour. It is further stated that the BSES had also not handed over the old equipment removed from pole to police in order to conceal their negligence as result of which no seizure memo was prepared by the police. It is further stated that the adverse inference be drawn against BSES for not handing over the removed old electrical Gazettes from pole in question to the police. It is further stated that it came on record that the current was leaking from the pole in question from letter, dated 25.10.2016 of BSES that due to which the deceased was electrocuted. It is further stated that as per Rule 29 of the Electricity Rules 1956, all the electrical supply lines or apparatus shall be of sufficient rating for power insulation and estimated fault current and be of sufficient mechanical strength for which they may require to perform and shall be constructed installed and protected for the safety of human being or animals. It is further stated that as per Rule 30 of the Indian Electricity Rules 1956, the supplier shall ensure that all electric supply lines, wires CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 20 of 36 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. It is further stated that there is violation of Rule 35 (2)
(i) of the Indian Electricity Rules 2010 - Supply and use of energy- that the energy shall not be supplied transformed or converted unless a linked switch with fuse or a circuit breaker by low and medium voltage consumers shall be installed in every equipment which will break the circuit in case any fault emerge.
7(a)(ii). It is further stated that there is violation of Rule 72 of the Electricity Rules 2010 which says that the earthing wire must be attached with the pole which is not attached in present case. It is further stated that as per section 68 (5) of Electricity Act 2003 which says that if any overhead line is disturbed by any structure, tree then the licensee shall inform the Executive Magistrate and the Magistrate shall take the steps for removal of said structure. This section was interpreted by the Hon'ble Apex Court in HSEB v Ram Nath, 2004 (5) SCC 793 in which it was held that it was the duty of the licensee to move an application before the Executive Magistrate or before the Civil Court for removal of the said structure and if no application is moved then the electrical company is responsible for any loss suffered by the victim. It is further stated that in the instant case no service line was affixed with the pole which was installed in the property of plaintiff and thus there was no overhead line or service line on the pole when the property was constructed. The pole was half of height then the normal pole and the same was coming under the chajja of the house of plaintiff. It is further stated that the plaintiff had also filed one letter, dated 28.03.2015 Ex.PW7/1 and the same was received by the office of defendant number 1 on 10.04.2015, wherein, it was requested to BSES to remove the pole installed in the plot of plaintiff. Thereafter, Learned Counsel for plaintiff has relied upon the following judgments CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 21 of 36 titled as AIR 1968 SC 1413, MC Mehta v UOI (1987) 1 SCC 395, M.P. Electricity Board v Shail Kumari & Ors. (2002) 2 SCC 162, Munni Devi v Govt of NCT, 278 (2021) DLT 129, Baby Anjum through her natural guardian v Chief Executive Officer BSES Power Ltd, 189 (2012) DLT, Raman v Utter Haryana Bijli Vitran Nigam 2014 (15) SCC 1, Delhi Jal Board v Raj Kumar 125 (2005) DLT 120, National Insurance Company Ltd. v Pranay Sethi, 2017 ACJ 2700 SC 5 bench, United India Insurance Co. Ltd. v Satinder Kaur, 2020 ACJ 2131 SC, Hardeep Kaur v Kailash, 193 (2012) DLT 168, Gopal Krishanji Ketkar v Mohammad Haji Latif Three Bench, AIR 1968 SC 1413, H.S.E.B. v Ram Nath, 2004 (5) SCC
793. All these judgments have been perused very carefully vis-a-vis facts of the present case.
7(b). Written submissions have also been filed on behalf of defendant number 1 in which once again the contents of plaint, written statement, testimonies and arguments have been reiterated. Apart from this, it is stated that the plaintiff had neither placed on record any ownership documents nor provided detailed dimensions of plot to prima facie demonstrate that pole was installed inside the plot. It is further stated that the pole was installed on road/street which was taken inside the plot by illegally constructing slab/chajja around the pole which plaintiff had claimed to be a box. It is further stated that the street light pole was not idle and was existing when illegal construction was carried out by the plaintiff. It is further stated that PW1 Mukesh Kumar Sharma, Electrical Inspector in his report Ex.PW1/1, wherein, it is alleged that there was leakage of current due to faulty choke and earthing and did not find any faulty choke installed at site at the time of inspection. No handing over/taking over report qua the faulty choke was ever prepared by him. PW1 could not even tell as to which BSES official handed over the faulty choke as alleged by him. PW1 admitted that on the day of inspection there was no leakage. PW1 CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 22 of 36 admitted that no accident would have taken place even on account of leakage had there been no platform/slab/ illegal construction. It is further stated that PW2 Sh. Manoj Kumar Gupta, Assistant Manager produced the statement of account of deceased Late Deepak with effect from June 2013 to September 2016 Ex.PW2/1. From the said bank statement, it is clear that there was hardly withdrawal of around rupees four to five thousand per month and except for salary there was no other deposit entry. Thus, it is clear that there was no tuition income, further deceased was not bearing the household expenses and was only withdrawing towards his personal needs. It is further stated that even during the course of cross examination, PW4 admitted that as such there is no proof that deceased used to take tuitions. It is further stated that PW7 had also admitted in his cross examination that his wife is a housewife and did not have any medical history. It is further stated that from the cross examination of PW8 Sh. Jagpal Singh, it is clear that he had filed a false affidavit. 7(b)(i). It is further stated that the defendant number 1 led evidence as per their stand in the written statement, wherein, it was stated that the pole was well maintained BSES had complained the police regarding damage caused to pole by the husband of plaintiff number 1 and regarding interfering with the system of defendant, accessibility notice was issued during the construction of house which was duly received yet the safe distance was not maintained. It is further stated that defendant number 3 also led it's evidence through it's proprietor and admitted being the contractor of defendant number 1 having executed agreement to this effect. The execution of Agreement, Mark DW3/DX was admitted though he denied that the said agreement was the same which was referred to in his evidence affidavit and claimed that he could not provide copy of agreement as mentioned in his affidavit. There was admission that agreement DW3/DX was the agreement between the parties in terms CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 23 of 36 whereof he was AMC holder of defendant number 1. It is further stated that there was no witness who deposed to the effect that accident took place in his presence. It is further stated that as per said report there was head injury at two points and it seems that the death was on account of deceased falling from height leading to head injury and death. It is further stated that the pole admittedly was cemented pole with street light on it. Thus on touching of pole there could not be any flow of electricity. Current could not flow through cement. It is further stated that either the boy touched window of house, wherein, also wires were hanging as apparent from duly exhibited photographs or on account of touching the clamp of street light. It is further stated that had there been no platform that is illegal slab constructed around pole by plaintiffs then street light pole would not have been accessible to anyone on their standing on ground. It is further stated that the plaintiffs' contributory negligence caused death and as major negligence was of plaintiffs and hence, an amount of around 90% should be deducted towards the same from the calculated compensation amount. Thereafter, Learned Counsel for defendant number 1 has relied upon the judgments of Hon'ble Supreme Court of India titled as National Insurance Company Limited v Pranay Sethi, AIR 2017 Supreme Court 5157, Sarla Verma v Delhi Transport Corporation, AIR 2009 Supreme Court 3104 and United India Insurance Co. Ltd. v Satinder Kaur @ Satwinder Kaur & Ors, Civil Appeal no. 2705/2020, decided on 30.06.2020. All these judgments have been perused very carefully. 7(c). Written submissions have also been filed on behalf of defendant number 2 in which once again the contents of plaint have been reiterated. Apart from this, it is stated that the defendant number 1 M/s. BSES Yamuna Power Ltd. (Insured) has nothing to do in the present suit for compensation since alleged electrocution accident, if any caused solely due to the self negligence of deceased Late Deepak. It is further stated that CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 24 of 36 the defendant number 1 as well as defendant number 2 are not liable to pay compensation to the plaintiffs. It is further stated that the present suit for compensation under the Fatal Accident Act had not disclosed any cause of action against defendant number 1 and subsequently against defendant number 2 (Insurer) since as the manner in which the alleged accident was stated to have been occurred is absolutely wrong and concocted. It is further stated that the defendant number 2 is liable to indemnify only that loss which is admitted by M/s. BSES Yamuna Power Limited subject to 'Insurance Policy effective on claims made basis'. It is further stated that the date of incidence is 31.07.2016 at about 10.30 am and case was reported after the expiry of Insurance Policy number 1301362713000060 which was effective for the period from 02.04.2016 to 01.04.2017 therefore, the claim is not admissible since defendant number 2 is liable to indemnify to defendant number 1 as per clause 4 of policy form claims made basis. It is further stated that that if there is any violation of terms and conditions of Insurance Policy on the part of defendant number 1, the Reliance General Insurance Company would not be liable to indemnify any loss to them and also would not be liable to pay compensation to the plaintiffs. It is further stated that the without admitting the factum of accident and it's liability, it is stated that there was compulsory excess clause in paragraph number 14 Mark B that is rupees 5,00,000/- for each and every claim.
7(d). Written submissions have also been filed on behalf of defendant number 3 in which it is stated that the defendant number 3 had filed his reply, wherein, he had had clearly mentioned that the role of defendant number 3 is only to do maintenance and not of the installation of electric gazettes and if there is a negligency in the equipment installed by BSES then defendant number 3 is not liable to pay any compensation. It is further stated that his job was only to provide the labour to BSES to do work and CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 25 of 36 the installation of wire and equipment is not the duty of defendant number
3. It is further stated that if someone makes complaint then it is first registered with the BSES office and then those complaints are forwarded to defendant number 3. It is clarified by defendant number 3 that the work of repair is always done under the supervision of Engineer of BSES and if something is left then that deficiency is plugged there and thereafter the labour of the defendant number 3 is relieved. It is further stated that the BSES had also taken an insurance policy and if any third party claim arises then the said claim is to be paid by the insurance company and taking of policy is mandatory as per the Public Liability Act. It is further stated that as per 12, 14, 40, 42, 53 of the Electricity Act 2003 and rule 29 of Electricity Rules 1956, a non delegable duty is imposed on the principal, BSES to distribute electricity by maintaining the system in such a way to ensure safety of human being and animal by affixing tripping system, affixing earth wire and maintain isolated system in accordance with the act and rules.
8. Reasons and analysis/finding After recording the gist of evidence led by both the parties, let me record the findings on each issue.
8(a). Issue number 1, that is, whether the death of Deepak was caused due to the negligence of the defendants? and Issue number 2, that is, whether the plaintiffs are entitled to any compensation if so to what amount and from which defendant? The onus to prove issue number 1 is on the plaintiffs, while, the onus to prove issue number 2 is on the defendants. All these issues being interconnected are taken up together. 8(a)(i). First of all, it seems necessary that the aspect of burden of proof/relevancy of the evidence in the civil proceedings needs to be analyzed. In phipson on Evidence, 13th edition, page 44, paragraph 4-03, it CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 26 of 36 is observed that the phrase burden of proof has three meanings, (1) the persuasive burden, the burden of proof as a matter of law and pleading the burden of establishing a case, whether by preponderance of evidence or beyond a reasonable doubt, (2) The evidential burden, the burden of proof in the sense of adducing evidence and (3) the burden of establishing the admissibility of evidence. In Halsbury, volume 17, page 11, it is observed that there are at least two distinct senses in which burden of proof is used, and clarity over which sense is relevant at any given time is essential. The legal burden is the burden of proof which remains constant throughout a trial. The initial burden of proving a prima facie case in his favour is cast on the plaintiff, when he gives such evidence as will support a prima facie case, onus shifts on the defendants. A party has to plead the case and produce / adduce sufficient evidence to substantiate his submissions made in the plaint and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. Further, burden of proof is also covered in Section 101 of the Indian Evidence Act, 1872 (hereinafter, referred to as the Act) in which it is explained that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In such a suit, plaintiff has to create a high degree of probability so as shift the onus on the defendants. Thereafter, the result of the suit depends upon the evaluation of the result drawn by the applicability of the rule. Reliance is placed upon Life Insurance Corporation of India v Ram Pal Singh Bisen, (2010) 4 SCC 491, Ram Bhajan v Abdul Rahman, AIR 1997 AII 17, Rajasthan State Road Transport Corporation v Bajrang Lal, (2014) 4 SCC 693.
8(a)(ii). Further, with respect to negligence, it must be mentioned that as a general rule, it is for the plaintiff to prove that the defendant was negligent. CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 27 of 36 Once again the initial burden of making out at least a prima facie case of negligence as against the defendant lies heavily on the plaintiff, but, once this onus is discharged, it will be for the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of the plaintiff. If the plaintiff is not able to prove negligence on the part of the defendant, the defendant cannot be made liable. Direct evidence of the negligence, however, is not always necessary and the same may be inferred from the circumstances of the case. In certain cases plaintiff needs not prove and the inference of negligence is culled out on the basis of maxim 'Res Ipsa Loquitur' which means the thing speaks for itself. Reliance is placed upon Parvati Devi v Commissioner of Police, (2000) 3 SCC 754. Now, if specifically, speaking about electrocution cases in such type of cases there is a duty to care that accident must/should not happen. The Courts have taken serious note of negligence on the part of Electricity Boards in not regularly making inspection of supply lines, supervising safety of land and pilferage from supply lines. It has been held to be a duty of the Board to regularly make inspection of supply lines, to supervise the safety of land and pilferage from supply lines. Reliance is placed upon Bihar State Electricity Board v Lacho Sah & Ors. 2004 ACJ 972, Suptd. En., R.S.E.B. Sikar v Kurda Ram A.I.R. 2017 (NOC) 870 (Raj.), P. Ramudu v Supdt Engineer, A.P.S.E.B A.I.R. 2009 (NOC) 568 (A.P.), Mallick v The Supdt. Engr., C.E.S. A.I.R. 2009 (NOC) 570 (Mad.) and H.S.E.B. v Ram Nath 2005 A.C.J 342 (SC) 8(a)(iii). Also, it is a well known fact that duties imposed by law under Law of Torts are not towards any specific individual or individuals but they are towards the world at large. However, only that person will be entitled to sue who suffers damage by the breach of the duty. Adverting, the facts of the case, defendant number 1 had argued that it had given the contract for annual maintenance inter alia of the maintenance of street light CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 28 of 36 of the area in question to defendant number 3. It is stated/argued by defendant number 1 that any liability if arises is that of defendant number 3 and the claims on account of electrocution, if any against defendant number 1 has to be settled and finally paid by defendant number 2. In the overall circumstance, it can be culled out that there being no privity of contract between the plaintiffs and defendant number 1, 2 and 3, the interse contract or agreement among the defendants, if any was not binding upon the plaintiffs. The privity of contract for indemnification as per policy of contract applies only in between the defendants. Therefore, it can be safely said that as of now it is defendant number 1 which can be held liable for negligence. However, at the same time, it is not wrong to say that defendant number 1 is a liberty to pursue the legal remedy against the remaining defendants in accordance with law by way of separate and independent action.
8(a)(iv). Now, dealing with the issue that whether or not deceased expired due to the negligence on the part of defendant number 1? and thus plaintiffs are entitled to receive compensation from defendant number 1 as claimed in the plaint? To start with, doubtless that PW1 is one of the most material/relevant witness in the entire range of testimonies/evidences produced on behalf of plaintiffs he being official as well as an expert. PW1 has specifically mentioned/raised the aspect of negligence on the part of electricity company/BSES officials. It is clear from the testimony of Electrical Inspector that technical deficiencies in the pole in question were present which led to the accident in question. During the course of his cross examination, he had clarified that the faulty choke which was provided at the time of inspection and non earthing are the main reasons for the occurrence of accident. During the course of cross examination of PW1, nothing relevant as such has come out against the case of plaintiffs. Even if we traverse beyond the testimony of PW1, it is neither CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 29 of 36 understandable nor explained by defendant number 1 that why choke was replaced just after the occurrence of accident and why not the faulty choke was handed over to the concerned official at the time of inspection/investigation so that it must be seized as per law and got investigated by the relevant agencies. Also, admittedly when construction on the plot in question or say nearby/around the pole in question started, father of deceased wrote a letter which is Ex.PW7/1 to BSES and thereby pleading before it's officials to remove the pole in question qua which BSES sent a notice to the plaintiffs. In that notice, it was directed that a distance of 1.2 m be maintained from pole in question while, doing construction. It seems relevant here to question/argue that is just for asking maintaining distance is the only duty of BSES, in light of plethora of judgments of Hon'ble Superior Courts which were already discussed it can be safely said that the duty of BSES officials is more than sending notice to plaintiffs to maintain distance while, doing construction. 8(a)(v). During the course of entire testimony or even at the stage of final arguments/written submissions, it has never been explained on behalf of BSES that why despite receiving the information of such a pole in question in an around the vicinity of the house of plaintiffs rather than formally visiting and taking note of the circumstances, a mere sending of notice preaching about distance completed the duty of defendant number 1. Admittedly, after the issuance of notice, dated 27.05.2016, of maintaining the distance, defendant number 1 never bothered to visit the place to check whether the distance was maintained or not and what implication had arisen of non maintaining the distance? What to say about of taking of further steps on behalf of BSES in accordance with the Electricity Rules especially regulation 72 of the Electricity Rules, 2010, rule 74, 29, 30 of the Indian Electricity Rules, 1956. Alongwith that witnesses produced on behalf of defendant number 1 that is D1W1 as well as D1W2 admitted in CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 30 of 36 their respective cross examinations that they had not filed any document to support their version that pole in question was in existence before the construction the property in question or that the pole in question was the property of Delhi Municipal Corporation. Though, defendant number 1 had relied upon one photocopy of letter, dated 10.06.2016, addressed to the Station House Officer, Police Station Karawal, but, again, it is neither clarified nor comprehensible that what further steps were taken to ensure the execution of the concerns raised by the department, after writing the aforesaid letter. It is incomprehensible that what steps were taken by the police officials on the basis of present letter or if no steps were taken why not the matter was raised before the higher authorities by defendant number 1. No satisfactory explanation was given by defendant number 1 for non taking of steps on the complaint lodged by the plaintiffs on 27.03.2015 qua the presence of pole in question in the premises of plaintiffs.
8(a)(vi). Further, with respect to objections raised by defendant number 1 through it's written statement that the construction was done around the abovesaid pole in question and thus there was contributory negligence on the part of plaintiffs. These submissions to a certain extent pointed the fingers towards the negligence of the plaintiffs, but, in the overall circumstances, it seems that the liability of defendants, especially, that of defendant number 1 is more than the duty of the plaintiffs to take care. It is to be noted that an accident would only be said to be the result of contributory negligence if the proximate cause of accident is the act or omission amounting to want of ordinary care or defiance of duty or obligation on the part of complaining party has conjoint with the other party's negligence and this has to be interpreted vis-a-vis aspect of strict liability. It needs to be pin pointed here that in cases of strict liability a person is liable for some harm even though he is not negligent in causing CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 31 of 36 the same, or there is no intention to cause the harm, or some time he may even have made some positive efforts to avoid the same. Electricity companies are duty bound to care that accident should not happen. In such type of strict liability/no fault liability cases, the concept of negligence is not that relevant and the operator of the activity may be held liable irrespective of it's having taken precaution to avoid harm and in this particular case, it is clearly evident in view of abvoe detailed discussion that BSES Officials have miserably failed to avert the impeding harm. Reliance is placed Municipal Corpn. of Greater Bombay v. Laxman Iyer, AIR 2003 SC 4182 and M.P. State Electricity Board v Shali Kumari & Ors. AIR 2002 SC 551. Accordingly, issue number 1 is decided in favour of plaintiffs and against defendant number 1.
8(a)(vii). Further, it needs to be pin pointed here that if the expectation of life is reduced due to the injuries suffered by a person, he is entitled to claim compensation and in case, the person had expired, his legal representatives are entitled to claim that compensation. Now, dealing with the quantum of compensation to be paid to the plaintiffs. Plaintiffs have claimed as well as proved as discussed in detail before and hereunder as well that the deceased was working in LNJP hospital as Lower Division Clerk on contract basis and was drawing the salary of rupees 15,700/- per month. Though, plaintiffs had also claimed that the deceased was earning money by way of giving tuitions and got testified one witness in that regard, but, as such his testimony is not worth enough to prove that the deceased used to earn money by giving tuitions in the absence of relevant bank records et cetera in that regard. It is also to be noted that damages in the present case have to be assessed on the principle as recognized under Motor Vehicle Act as there is no other enactment for determining the compensation in case of death caused due to electrocution.
CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 32 of 36
9. Computation Of Compensation 9(a). As far as computation of compensation is concerned, the same shall be under the following heads :-
9(a)(i). Medical Expenses:- It is clear from above stated facts and circumstances that the deceased had expired soon after the accident and no medical expenditure was undertaken by the plaintiffs in the treatment of the deceased before his death, hence, plaintiffs are not entitled to any compensation under this head on account of absence of any evidence brought on record in this regard.
9(a)(ii). Loss of Dependency:- the present case, perusal of the marksheet pertaining to Class 10th issued by Central Board of Secondary Education, Ex.PW4/3 as well as result/score card issued by the Institute of Banking Personnel Selection, Ex.PW4/5 of deceased Late Deepak Kumar reveal that date of birth of the deceased was 23.05.1988 and the same has not been disputed in any manner by the defendants. Therefore, the deceased was thus aged about 28 years at the time of the incident resulting in his death on 31.07.2016.
9(a)(iii). Plaintiff number 1 Smt. Usha Kumari/PW4 in her deposition stated that at the time of accident her deceased son was working as Lower Division Clerk on contract basis in LNJP Hospital, and was earning rupees 15,700/-per month. To substantiate this fact PW3 Ms. Rajni Malhotra, Lower Division Clerk, Nursing Council, Ahilyabai College of Nursing Building, New Delhi appeared in the witness box and proved the whole record pertaining to deceased prior to his death that is 03.06.2013 to 03.03.2017. During cross examination PW3 remained consistent on her deposition that deceased Late Deepak Kumar was working with their department as contract employee. Nothing contrary to the deposition of PW3 and salary record of deceased Late Deepak Kumar Ex.PW3/1 (colly) has been brought on record by the defendants.
CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 33 of 36 9(a)(iv). Thus, keeping in view above evidence and material brought on record, this Court is of the considered view that plaintiffs have successfully established on record that deceased was working as Lower Division Clerk on contract basis in LNJP Hospital and was drawing salary of rupees 15,700/- at the time of accident and his resultant death. 9(a)(v). Furthermore, as per the judgment of the Hon'ble Supreme Court titled as National Insurance Company Limited v Pranay Sethi & Ors. (2017) 16 SCC 680, 50% addition shall be given to the deceased towards future prospects as he was below 40 years at the time of incident. Therefore, the monthly income of the deceased with 50% future prospects comes out to be rupees 15,700/- plus 7,850/- (15,700/- X 50/100) = rupees 23,550/- per month.
9(a)(vi). As held above, the deceased Late Deepak Kumar was unmarried on the date of the incident. Therefore, 50% of the earnings of the deceased Late Deepak Kumar shall be deducted towards his personal and living expenses. Therefore, in the entire given facts and circumstances, deduction of 1/2 of total income is made for personal living expenses of deceased. Hence, an amount of rupees 11,775/- (rupees 23,550/2) is required to be deducted from income of deceased. Finally, annual dependency of dependent is calculated as under (annual income) - (annual expenses of deceased) that is (rupees 2,82,600/- minus rupees 1,41,300/-) = rupees 1,41,300/- per annum.
9(a)(vii). Moreover, in view of the law laid down by the Hon'ble Supreme Court in case of Sarla Verma & Ors. v Delhi Transport Corporation & Anr. (2009) 6 SCC 121, which has also been upheld by the Constitutional Bench of Hon'ble Supreme Court in the case of National Insurance Company Ltd. v Pranay Sethi & Ors. SLP (Civil) No. 25590 of 2014, decided on 31.10.2017, the multiplier of '17' is held applicable for calculating the loss of dependency caused to the plaintiffs on account of CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 34 of 36 death of deceased. In view of the aforesaid facts and circumstances, the total loss of dependency qua the deceased in the present case comes out to be rupees 1,41,300/- X 17 = rupees 24,02,100/-.
10. Loss Of Consortium / Loss Of Love And Affection:- In Magma v General Insurance Co. Ltd Vs. Nanu Ram & Ors, 2018 ACJ 2782, it was observed by Hon'ble Supreme Court that 'consortium' is a compendious term, which encompasses 'spousal consortium', 'parental consortium' and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his entire family.
10(a). In the facts and circumstances of the present case, the computation of compensation under this head is as follows :
Filial Consortium : Rs. 0/- (Rs. 48,000/- X 0)
Spousal Consortium : Rs. 0/- (Rs. 48,000/- X 0)
Parental Consortium : Rs. 96,000/- (Rs. 48,000/- X 2)
10(a)(i). Hence, the plaintiffs are hereby granted a total sum of rupees 96,000/- on account of loss of consortium/loss of love and affection under this head.
11. Loss Of Estate & Funeral Expenses:- A total sum of rupees 36,000/- is granted in favour of plaintiffs under both the heads that is rupees 18,000/- on account of 'loss of estate' and rupees 18,000/- for 'funeral expenses' of the deceased, as per the law laid down in National Insurance Company Ltd. v Pranay Sethi & Ors. (Supra).
12. The total amount of compensation to be granted in favour of the plaintiffs in the present case is thus rupees 24,02,100/- plus rupees 96,000/-
CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 35 of 36 plus rupees 36,000/- = rupees 25,34,100/-.
13. Plaintiffs are claiming the interest at the rate of 12% per annum in the present suit. The said interest of rate, in my opinion, is excessive and exorbitant. In view of prevailing economic situation, the ends of justice shall be served in case the defendant number 1 is made to pay simple interest on the abovesaid sum at the rate of 8% per annum to the plaintiffs. Thus, the total compensation turns out to the rupees 25,34,100/- (rupees twenty five lakhs thirty four thousand and one hundred only) which defendant number 1 BSES is liable to pay to the plaintiffs. This issue is accordingly answered in favour of plaintiffs and against defendant number 1 BSES.
14. Relief 14(a). In view of the findings on the issues framed, as discussed above, the suit of plaintiffs is hereby decreed for the relief of recovery of a sum of rupees 25,34,100/- alongwith simple interest on the said sum at the rate of 8% per annum against defendant number 1 BSES from the date of filing of present suit till it's realization. Cost of the suit is also awarded in favour of plaintiffs.
15. Decree sheet be prepared accordingly.
16. File be consigned to Record Room after necessary compliance.
MANU Digitally signed by
MANU VEDWAN
VEDWAN Date: 2025.05.29
16:16:49 +0530
(Manu Vedwan)
District Judge-02 (North East District)
Karkardooma Courts, Delhi.
Announced in the open court
today i.e. 29th May, 2025
CS No. 127/2017 Usha Kumari & Anr. Vs. BSES Yamuna Power Limited & Ors. Page No. 36 of 36