Delhi District Court
Sh. Baais Ram vs The General Manager ( Commercial) on 5 August, 2014
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
In the Court of Sh. Gorakh Nath Pandey
Additional District Judge02 ( NE)
Karkardooma Courts, Delhi.
CS No. 253/14
Case I.D. Number : 02402C0134782010
IN THE MATTER OF :
Sh. Baais Ram
S/o Sh. Rustam Singh,
R/o Jhuggi No. E73/A513,
Sanjay Colony Camp, Delhi. ................ Plaintiff
VERSUS
The General Manager ( Commercial)
BSES Yamuna Power Limited
AT: Shakti Kiran Building,
Karkardooma, Delhi 110032 ............... Defendant
Date of Institution of Suit : 14.05.2010
Received in this Court : 25.02.2014
Date of Arguments : 05.08.2014
Date of Judgment/Order : 05.08.2014
Decision : Suit decreed
CS No. 253/14 1 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
Suit for recovery of damages for Rs. 10,00,000 ( Rupees Ten Lakh ) on
account of death of master Rajesh @ Yeshpal
JUDGMENT
1. The plaintiff has filed this suit for recovery of Rs. 10,00,000 ( Rupees
ten Lakh Only ) U/o 33 CPC as an indigent person as damages/compensation
on account of death of master Rajesh @ Yeshpal who died on 04.04.2009 due
to electrocution. As observed, an application U/O 1 Rule 10 CPC was filed by
the plaintiff to implead M/s Reliance General Insurance Company Ltd. which
was disallowed vide order dated 03.12.2011.
2. The suit has been filed with the averments that the plaintiff is the daily
wages labourer. On 29.03.2009, at about 12:19 PM son of the plaintiff Rajesh
@ Yeshpal aged about 8 years met burn injuries from the open wires
connected with the transformer installed by the defendant at Gokal Pur village,
Ganda Nala. He was taken to the GTB Hospital by PCR Van vide MLC No.
A1292 and FIR bearing No. 16/2009 U/S 290/337 IPC at PS Yamuna
Vihar/Gokal Puri was registered against the defendant. Master Rajesh @
Yeshpal was expired on 04.04.2009 and postmortem was conducted vide
postmortem report N0. 393/2009. The death was caused due to negligence of
the defendant and the plaintiff suffered physical and mental agony. The
defendant is liable to pay damages. Hence this suit is filed by the plaintiff
CS No. 253/14 2 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
against the defendant.
3. Written statement has been filed on behalf of defendant raising
preliminary objections that the plaintiff has concealed the material facts and
not approached the court with clean hands; this suit is false and filed to extort
the money from the defendant and the defendant is not responsible. As
contended, the kiosk where the transformer was installed was properly fenced,
locked and terminals were properly tapped and nobody could enter the kiosk
until someone tried to forcibly enter the same. The defendant is ensured with
M/s Reliance General Insurance who is a necessary party. The defendant
denied that no safety measures were installed or the son of the plaintiff met
with burn injuries due to open wires. There was no open wires as contended
and in view of the joint inspection carried out in the presence of Electrical
Inspector and IO on 30.03.2009, no flash over mark were observed, the kiosk
was found locked and terminals were found properly tapped. The defendant
denied that the death was caused due to the defendant mentioning the son of
the plaintiff tried to enter the substation along with cable entry hole and died
due to his own fault and negligence. While denying the responsibility along
with other material contentions of the plaintiff in the plaint, the defendant
prayed to dismiss the suit with cost.
4. As mentioned, this suit was filed by the plaintiff as an indigent person
and the application U/O 33 CPC filed in this regard was allowed vide order
dated 08.12.2010 and the plaintiff was granted permission to sue as indigent
person.
CS No. 253/14 3 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
5. In view of the pleadings of the parties, following issues were settled
vide order dated 23.02.2012.
(i) Whether the master Rajesh son of the plaintiff died on 04.04.2009 due to
electrocution from the electricity transformer maintained by the defendant ? If
in affirmative, whether the plaintiff is entitled to compensation of Rs.
10,00,000/ on account of the said fatal accident ? OPP
(ii) Relief.
Thereafter, case was fixed for plaintiff's evidence.
6. In support of their respective case, the plaintiff and the defendant have
adduced oral as well as documentary evidence.
Plaintiff filed his affidavit by way of evidence Ex. PW1/A and was
examined as PW1 in support of claim and contentions. PW1 in one way or
the other reiterated the averments as mentioned in the plaint and also deposed
regarding the documents i.e. Voter ID Card & Ration Card Ex. PW1/1 and Ex.
PW1/2 respectively, Identity card of his son late Rajesh from MC Primary
School, Gokal Puri, Delhi Ex. PW1/3, Site plan Ex. PW1/4. The witness also
deposed regarding the affidavit dated 20.04.2009 Mark A and Receipt
regarding handing over the dead body executed by IO/SI Preetam Singh Mark
B.
Master Mukesh S/o Plaintiff was examined as PW2 who deposed that
his brother Rajesh has died in the year 2009 when he was playing with him
while taking the ball inside the electric transformer.
Mr. Sanjeev Kumar, Statistical Assistant, GTB Hospital appeared with
CS No. 253/14 4 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
the MLC NO. A1292/09 dated 23.09.09 in respect of Yeshpal S/o Rustam
Singh prepared at the hospital by Dr. Kumar Neeraj vide Ex. PW3/A.
Mr. Harish Chand Pandey, Technical Assistant, department of Forensic
Medicines, UCMS and GTB Hospital deposed regarding the postmortem
report No. 393/09 of Yesh Pal S/o Bias Ram vide Ex. PW4/A prepared by Dr.
Atul Gupta. As no other witness remains to be examined by the plaintiff, PE
was closed and the case was fixed for defendant evidence.
7. After the PE was closed on 11.09.03 and despite grant of several
opportunities to lead DE, no witness was examined on behalf of the defendant,
the DE was therefore closed vide order dated 02.04.2014.
8. I have heard the final arguments on behalf of plaintiff and defendant .
9. It is argued by Ld. Counsel for plaintiff that the suit of the plaintiff is
liable to be decreed as the defence of the defendant is shame, baseless and
have no merits. It is further argued that the plaintiff has proved his case with
relevant documents along with the liability of the defendant and prayed to pass
decree in favour of the plaintiff and against the defendant.
10. Ld. Counsel for the defendant on the other hand denied any liability
contending that the plaintiff has failed to prove the case and is not entitled for
any damages/compensation as prayed in the suit. It is further argued this a
false case and suit may be dismissed with cost. The Ld. Counsel denied the
liability of defendant in view of absence of any negligence/fault. It is further
argued that the plaintiff failed to established the identity of the deceased and
prove that he was son of the plaintiff. Ld. Counsel for defendant prayed to
CS No. 253/14 5 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
dismiss this suit with cost.
11. I have given my thoughtful consideration to the submissions and
considered relevant materials on record along with authorities/ provisions of
law. My findings on the above said issues are as under:
Issues No. (i)
(i) Whether the master Rajesh son of the plaintiff died on
04.04.2009 due to electrocution from the electricity transformer
maintained by the defendant ? If in affirmative, whether the plaintiff is
entitled to compensation of Rs. 10,00,000/ on account of the said fatal
accident ? OPP
12. The relevant provision of law i.e. Section 1 (a) of the Fatal Accident
Act, 1855 provides as under:
'' (1A). Suit for compensation to the family of a
person for loss occasioned to it by his death by actionable
wrong. Whenever the death of a person shall be caused by
wrongful act, neglect, or default, and the act, neglect or
default is such as would (if death had not ensued) have
entitled the party injured to maintain an action and recover
damages in respect thereof, the party who would have been
liable if death had not ensued, shall be liable to an action
or suit for damages, notwithstanding the death of the
person injured, and although the death shall have been
CS No. 253/14 6 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
caused under such circumstances as amount in law to
felony or other crime.
Every such action or suit shall be for the benefit of
the wife, husband, parent and child, if any, of the person
whose death sahll have been so caused, and shall be
brought by and in the name of the executor, administrator
or representative of the person deceased;
and in every such action, the court may give such
damages as it may think proportioned to the loss resulting
from such death to the parties respectively, for whom and
for whose benefit such action shall be brought, and the
amount so recovered, after deducting all costs and
expenses, including the costs not recovered from the
defendant, shall be divided amongst the beforementioned
parties, or any of them, in such shares as the court by its
judgment or decree shall direct."
13. Being civil suit for damages, this suit is to be decided on the basis of
preponderance of probabilities. it is well settled that a suit has to be tried on
the basis of the pleadings of the contesting parties which is filed in the suit
before the trial court in the form of plaint and written statement and the
nucleus of the case of the plaintiff and the contesting case of the defendant in
the form of issues emerges out of that. Being a civil suit for partition, this suit
is to be decided on the basis of preponderance of probabilities. In the case of
CS No. 253/14 7 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418,
the Hon'ble High Court of Delhi was pleased to observe that "A civil case is
decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs.
Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was
pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a
creditor can maintain a civil and criminal
proceedings at the same time. Both the proceedings,
thus, can run parallel. The fact required to be proved
for obtaining a decree in the civil suit and a
judgment of conviction in the criminal proceedings
may be overlapping but the standard of proof in a
criminal case visavis a civil suit, indisputably is
different. Whereas in a criminal case the
prosecution is bound to prove the commission of the
offence on the part of the accused beyond any
reasonable doubt, in a civil suit " preponderance of
probability" would serve the purpose for
obtaining a decree".
14. Section 101 of the Evidence Act, 1872 defines " burden of proof" and
laid down that the burden of proving a fact always lying upon the person who
asserts the facts. Until such burden is discharged, the other party is not
CS No. 253/14 8 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
required to be called upon to prove his case. The court has to examine as to
whether the person upon whom the burden lies has been able to discharge his
burden. Until he arrives at such conclusion, he cannot proceed on the basis of
weakness of other party. Further, Section 58 of the Indian Evidence Act
contained that no fact need to be proved in any proceedings which parties
thereto or their agents agree to admit at the herein, or which, before the
hearing, they agree to admit by any writing under their hands or which by any
rule of pleadings enforce at the time they are deemed to have admitted by their
pleadings.
15. The onus to prove the issue was on the plaintiff. It is argued by the Ld.
Counsel for the defendant that the plaintiff failed to prove the identity of the
deceased. As held in judgment reported as Uttam Chand Kothari Vs. Gauri
Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot
be allowed to be withdrawn. In view of this legal position of the Evidence Act,
it is clear that it is for the defendant to prove that the deceased Rajesh @
Yeshpal was not son of the plaintiff or the identity of the deceased is not
proved.
16. The case of the plaintiff remained that his son Rajesh @ Yeshpal died on
04.04.2009 due to electrocution on 29.03.2009 by the transformer installed by
the defendant near Gokal Puri Village, Ganda Nala. As regards the identity of
the deceased, the defendant in the written statement did not deny specifically
that the deceased was the son of the plaintiff and the objection of the defendant
in this respect is merely oral at the time of final arguments. The plaintiff was
CS No. 253/14 9 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
not even crossexamined in this respect and therefore the objection of the
defendant regarding identity of the deceased is baseless and without any merit.
The name of the deceased mentioned Rajesh @ Yeshpal by the plaintiff. The
identity of the deceased Rajesh being son of the plaintiff is proved by way of
his identity card from the school Ex. PW1/3. As proved the plaintiff is illiterate
and Rushtam Singh is the father of the plaintiff therefore there is every
probability that the name of the deceased being mentioned as son of Rustam
Singh in the records i.e. MLC Ex. PW3/A. The name of Bias Ram as father
of the deceased is mentioned in the Post mortem report Ex. PW4/A. In view of
the materials on record and testimony of the witnesses it is proved that the
deceased Rajesh @ Yesh Pal was the son of the plaintiff.
17. The issue as to whether Rajesh @ Yeshpal died due to electrocution
from electric shock received from transformer in Gokalpuri Village, Ganda
Nala and whether the electric shock was received by deceased Rajesh @
Yeshpal due to faulty maintenance or on account of negligence on the part of
the defendant is the crucial issue because the fate of the case will depend on
the answer to the question. If this is answered in affirmative, the plaintiff
would automatically be entitled to damages. The defendant has simply
denied any liability along with negligence on its part on the ground that the
transformer was properly fenced, locked and terminals were properly tapped
and nobody could enter the same. This version of the defendant remained
unproved as the defendant failed to discharge the onus and lead any evidence in
this respect. As regards the electrocution as the cause of death of the
CS No. 253/14 10 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
deceased, there is no denial by the defendant and in one way or the other the
electrocution as the cause of death is accepted by the defendant. The defendant
has merely denied their liability along with negligence. As the regards the
contentions of the defendant that the deceased received one injury from other
place, no evidence is placed on record nor anything is proved by the defendant
in this regard. The defendant further failed to prove any inspection report
regarding property maintenance of the transformer as mentioned in the written
statement. Except the bald averment and denial of negligence/liability, nothing
is brought on record either to show any other cause of death of Rajesh @
Yeshpal except electrocution or that there was no death due to electrocution
by the transformer.
18. The brief and relevant facts for the filing of this suit and defence of the
defendant has been mentioned at the outset. It is relevant to note that in this
case the, eye witness to the incident namely PW2 was examined who deposed
that Rajesh received electric shock and got burnt and fell on the floor by the
transformer. The witness during crossexamination also deposed to the same
affect and his testimony received unimpeached in this respect. As mentioned
the death of Rajesh @ Yeshpal was due to electrocution and this fact is proved
in view of the relevant materials on record like MLC, postmortem report and
other materials.
19. The question remains to be adjudicated as to whether the death of
Rajesh @ Yeshpal was caused by the alleged electrocution from transformer
due to the negligence of the defendant as the defendant has denied liability .
CS No. 253/14 11 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
There is no dispute at all regarding the death and electrocution as the cause of
death of Rajesh @ Yeshpal and the only issue remains to be adjudicated
regarding liability defendant for negligence along with compensation/damages.
20. In the written statement, the defendant has simplicitor denied the
contentions in the plaint mentioning that there was no negligence of the
defendant. The defendant admitted in one way or the other the electrocution as
the cause of the death of Rajesh @ Yeshpal as mentioned in the plaint and
proved from the testimony of Pws, MLC and postmortem report. Admittedly,
the electrocution was from the transformer and there is merely evasive reply
by the defendant in the WS denying the liability. There is no specific denial by
the defendant in the written statement. Postmortem report No. 393/09 dated
05.04.2009 shows the cause of death in this case septicae mic shock due to
ante mortem claim burns involving 41 % of total body surface and the said
post mortem report is not disputed by the defendant. In fact no question was
asked during the crossexamination of the witnesses in this respect. In view of
the MLC, postmortem report and testimony of PWs, it is proved that the death
of Rajesh @ Yeshpal took place due to electrocution and burn injuries from the
transformer and therefore, the negligence of the defendant responsible to
maintain and up keep the transformer is also proved. The defendant has not
brought anything contrary on record to rebut the case of the plaintiff. As
mentioned no evidence was led by the defendant No. 4 or MCD to deny the
claim of the plaintiff and negligence imputed on them. So examining the case
on the basis of preponderance of probabilities, it is proved that the death of the
CS No. 253/14 12 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
Rajesh @ Yeshpal took place due to electrocution from the transformer and the
electric shock was received due to the faulty maintenance/negligence on the
part of the defendant who was responsible for the up keep and maintenance of
the same.
21. In the facts and the circumstances of the case, the doctrine of res ipsa
loquitur would also apply with full force. The maxim is stated as under:
" Where nothing is shown to be under the
management of the defendant or his servant, and the
accident is such as in the ordinary course of things does
not happen if those who have the management used
proper care, it affords reasonable evidence, in the
absence of explanation by the defendantthat the
accident arose from want of care."
The maxim was examined and discussed by Hon'ble Supreme Court in
Shyam Sunder & Ors Vs. State of Rajsthan, AIR 1974 SC 890 and held that
the mere fact that the cause of the accident is unknown does not prevent the
plaintiff from recovering damages. Hon'ble Supreme Court observed as
under:
" The maxim is only a convenient label to apply to a
set of circumstances in which the plaintiff proves a case
so as to call for a rebuttal from the defendant, without
having to allege and prove any specific act or omission
on the part of the defendant. The principal function of
CS No. 253/14 13 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
the maxim is to prevent injustice which would result if a
plaintiff were invariable compelled to prove the precise
cause of the accident and the defendant responsible for
it, even when the facts bearing on the matter are at the
outset unknown to him and often within the knowledge
of the defendant.......
The maxim is based on common sense and its
purpose is to do justice when the facts bearing on the
causation and on the care exercised by defendant are at
the outset unknown to the plaintiff and are or ought to
be within the knowledge of the defendant (see Barkway
V. S. Wales Transport ( 1950) AER 392......
The plaintiff merely proves a result, not any
particular act or omission producing the result. If the
result in the circumstances, in which he proves it,
makes it more probable than not that it was cause by the
negligence of the defendant, the doctrine of res ipsa
loquitur is said to apply, an the plaintiff will be entitled
to succeed unless the defendant by evidence rebuts that
probability ........
Over the years, the general trend in the application
of the maxim has undoubtedly become more
sympathetic to.
CS No. 253/14 14 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
Plaintiffs. Concomitant with the rise in safety
standards and expanding knowledge of the mechanical
devices or our age less hesitation is felt in concluding
that the miscarriage of a familiar activity is so unusual
that it is most probably the result of some fault on the
part of whoever is responsible for its safe performance (
see John, G. Fleming, The Law of Torts, 4th ed. , P.
260."
22. At this stage, it is relevant to impute strict liability upon the defendants.
The doctrine of strict liability has its origin in English Common Law when it
was propounded in the celebrated case of Rylands Vs. Fletcher ( 1868 Law
Reports (3) HL 330). The rule strict liability was approved and followed in
India in several decisions and the principle was reiterated in Kaushnuma
Begum Vs. New Indian Insurance Company Ltd., 2001 (2) SCC 9.
In M. C. Mehta Vs. Union of India, Hon'ble Supreme Court of India even
beyond the rule of strict liability held that, " Where an enterprise is engaged in
a hazardous or inherently dangerous activity and harm is cause on any one on
account of the accident in the operation of such activity, the enterprise is
strictly and absolutely liable to compensate those who are affected by the
accident; such liability is not subject to any of the exceptions to the principle
of strict liability under the rule in Rylands V. Fletcher."
23. Hon'ble Supreme Court in Union of India Vs. Prabhakaran; 2008 (9)
CS No. 253/14 15 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
SCC 527 extended the principle of strict liability to cover the public utilities
which may be social utility undertaking not working for private profit. As
held:
In such a case highest degree of care is expected
from private and public bodies especially when the
conduct is causes physically injury or harm to persons.
But, in a case, where life and personal liberty
have been violated the absence of any statutory
provisions for compensation in the statute is of no
consequence. Right to life guaranteed under article 21
of the constitution of India is the most sacred right
preserved and protected under the constitution,
violation of which is always actionable and there is no
necessity of statutory provision as such for preserving
the that right.
The principles have been followed and reiterated by Hon'ble Supreme
Court in MCD Delhi Vs. Association of Victims of Uphar Tragedy & Ors
(Civil Appeal No. 711415 of 2003. As held, due to the action or inaction of
the State or its officer, if the fundamental rights of a citizen are infringed then
the liability of the state, its officials and instrumentals is strict. Claim raise for
compensation in such a case is not a private law claim for damages, under
which the damages recoverable are large. Claim made for compensation in
public law is for compensating the claimants for deprivation of life and
CS No. 253/14 16 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
personal liberty which has nothing to do with a claim in a private law claim in
tort in an ordinary civil suit.
24. The ratio of judgment reported as III (2003) ACC 25 titled as Smt.
Abha Yadav & Ors. Vs. Municipal Corporation of Delhi squarely applies in
the facts of this case.
As held in M.P. Electricity Board Vs. Shail Kumar & Ors, 2002 SCC
( CRI ) 315, the Supreme Court considered the question of strict liability of the
electricity board in a case of electrocution of a citizen and ruled that in such
circumstance, irrespective of any negligence or carelessness, state electricity
board was liable to pay the damages and the exception " Act of stranger" to the
rule of strict liability was not attracted. The Court held:
" Even assuming that all the safety measure had
been adopted, a person undertaking an activity involving
hazardous or risky exposure to human life, is liable under
law of torts to compensate for the injury suffered by any
other person, irrespective of any negligence or carelessness
on the part of the managers of such undertaking. The basis
of such liability is the foreseeable risk inherent in the very
nature of such activity. The liability cast on such person is
known, in law, as " strict liability". It differs from the
liability which arises on account of the negligence or fault
in hits way i.e. the concept of negligence comprehends that
the foreseeable harm could be avoided by taking
CS No. 253/14 17 of 24
Baais Ram Vs. B. S. E. S.
Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi.
reasonable precautions.
One of the seven exceptions to the doctrine of strict
liability is." act of stranger i.e. if the escape was cause by
the unforeseeable act of a stranger, the rule does not apply.
But that exception is not available to the Board as the act
attributed to the third respondent should reasonably have
been anticipated or at any rate its consequences should have been prevented by the appellant Board."
25. Applying the principle of res ipsa loquitor and strict liability, it was not for the plaintiff to prove that defendant was negligent. Rather it was for the defendant to prove that defendant was not negligent and has taken every precaution for safety of all invites and visitors. The factum of death of Rajesh @ Yeshpal on account of electrocution as a result of the negligence of the defendant proved. The negligence is the breach of the duty caused by omission to do something which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
26. It is proved that the responsibility of the maintenance and up keep of the transformer in question was upon the defendant. If the energy transmitted caused injury or death of a human being, who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of the supplier of the electricity. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. Even assuming that all such CS No. 253/14 18 of 24 Baais Ram Vs. B. S. E. S. Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as " strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm they cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendants are held liable irrespective of whether he could have avoided the particular harm by taking precautions.
27. Keeping in view the above legal position, the question is whether the defendant is liable for the actionable negligence is answered in affirmative. From the materials on record and on the basis of preponderance of probabilities, it is established that deceased Rajesh @ Yeshpal died due to electrocution from the transformer. The onus to show that the transformer was installed and maintained by the defendant properly and did not cause the death of deceased Rajesh @ Yeshpal. The defendant was further under obligation to show that the death of deceased Rajesh @ Yeshpal was not caused due to any negligence on the part of the defendant. As mentioned there CS No. 253/14 19 of 24 Baais Ram Vs. B. S. E. S. Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. is nothing on record except bald averments of the defendant. Looking from any angle whatsoever, there is no escape from the conclusion that the injury was caused by transformer due to the negligence of the defendant in the proper maintenance.
In the opinion of this Court the defendant is liable for actionable negligence in regard to the death of Rajesh @ Yeshpal and therefore liable to pay damages/compensation.
28. In view of the aforesaid discussions,this court is of the considered opinion that deceased Rajesh @ Yeshpal had died on account of electrocution due to live current in transformer. Since the defendant was negligent in this regard and failed to maintain the transformer, the defendant is responsible to pay the compensation to the plaintiff. It is held that Rajesh @ Yeshpal died due to electrocution from electric shock/burnt injuries received from transformer installed in Gokalpuri Village Ganda Nala due to faulty maintenance/negligence on the part of the defendant and defendant is liable to pay the assessed compensation to the plaintiff as prayed in the suit.
29. The next question to be examined relates to the assessment of the amount of damages/compensation is the plaintiff entitled.
30. It is well settled that the accepted measure of damages awarded is the pecuniary loss suffered by the defendantas a result of death. It is also well recognized that except where there is express statutory direction to the contrary, damages to be awarded to a dependent of a deceased person must take into account any pecuniary benefit accruing to the defendant in CS No. 253/14 20 of 24 Baais Ram Vs. B. S. E. S. Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. consequences of death of the deceased. The actual pecuniary loss of its individual can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, on the other, any pecuniary advantage which from whatsoever source comes to him by the reason of the death. Hon'ble Supreme Court in Re Gobald Motor Services Ltd. Vs. R. N. K. Valu Swami & Others stated the general principles regarding the actual pecuniary loss. The assessment of the damages to compensate the dependent is beset with difficulties.
31. In the case at hand, the deceased Rajesh @ Yeshpal was stated to be about 8 years old at the time of death studying in school. It is contended by learned counsel for the plaintiff that the plaintiff is a poor person/rickshaw puller. The plaintiff claimed the compensation/damage of Rs. 10 lakh. The compensation in law is paid to restore the person who has suffered damage or loss in the same position, if the tortuous act or the breach of contract had not been committed. The law requires that the party suffering should be put in the same position, if the contract had been performed or the wrong had not been committed. The law in all such matters requires payment of adequate, reasonable and just monetary compensation. For calculating the pecuniary loss, it is the multiplier method which should be applied.
32. As mentioned in this case, the deceased was not earning at the time of his death and was child about 8 years of age. How to calculate the pecuniary compensation for loss of future earnings and loss of dependency of parents, grand parents etc. in the case of non working student was examined by Hon'ble CS No. 253/14 21 of 24 Baais Ram Vs. B. S. E. S. Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Supreme Court in AIR 2009 SC 2506 titled R. S. Malik & Anr. Vs. Kiran Pal & Ors. Under the second schedule of the Motor Vehicles Act, 1988, in case of a non earning person, his income is notionally estimated at Rs. 15,000/ per annum. The second schedule provides for the multiplier to be applied in cases where the age of the victim was less than 15 years. The death of deceased took place on 04.04.2009 and was aged about 8 years, the multiplier of 15 in view of Second Schedule of the Act would be applicable. Hon'ble Supreme Court in the case of Sarla Verma Vs. DTC reported as 2009 (09) SCC 121, Rajesh Vs. Rajvir Singh reported as 2013 (VI) SCALE 563 and Vimal Kuwar & Ors. Vs. Kishore Dan reported in II (2013) ACC 752 (SC) held that petitioner would be entitled to compensation on account of funeral expenses, loss of estate, loss of consortium, loss of love and affection to widow and mother each, loss of care and guidance for each minor child etc.
33. As mentioned the annual income of the deceased has to be considered Rs. 15,000/ and multiplier of 15 shall be applicable in view of the Second Schedule of the Act for calculation of compensation. The total compensation to which the plaintiff is entitled on account of the death of Rajesh @ Yesh pal is worked out as under:
(i) ACTUAL CALCULATION: Rs. 15,000/ X 15 = Rs. 2,25,000/ Further the award of the following amounts is made to the plaintiff under the heads mentioned FUNERAL EXPENSES CS No. 253/14 22 of 24 Baais Ram Vs. B. S. E. S. Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Under this head I hold that the plaintiff entitled to Rs.5,000/. LOSS OF ESTATE Under this head I hold that the plaintiff is entitled to Rs.5,000/. LOVE AND AFFECTION Under this head I hold that the plaintiff is entitled to Rs.5,000/.
34. In totality, therefore, the plaintiff is held to be entitled to following amounts:
(a) Claim towards compensation: Rs. 2,25,000/
(b) Claim towards Funeral Expenses: Rs.5,000/
(c) Loss of Estate: Rs.5,000/
(d) Love and affection: Rs.5,000/
Total: Rs.2,40,000/
35. In view of the discussions and findings, this court is of the considered opinion that the deceased Rajesh @ Yeshpal died due to electrocution and burn injuries received from the transformer maintained by the defendant at Gokulpur Ganda Nalal due to faulty maintenance/negligence and the defendant is therefore liable to pay the aforesaid assessed compensation of Rs. 2,40,000/ to the plaintiff. Issue No. I is decided in favour of the plaintiff and against the defendant.
Relief In view of the above said findings, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant for an amount of Rs. 2,40,000/ ( Rupees Two Lakh Fourty Thousand) along with interest @ 6% CS No. 253/14 23 of 24 Baais Ram Vs. B. S. E. S. Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. per annum from the date of filing of this suit till realization of the amount with cost of the suit.
As mentioned, this suit has been prosecuted by the plaintiff as an indigent U/O 33 CPC. The plaintiff is therefore directed to pay the appropriate court fee as per law which would have been paid by the plaintiff while filing the suit if he had not been permitted to sue as an indigent person in view of Order 33 Rule 10 CPC. Upon payment of appropriate court fees, within two weeks, decree Sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court on this 05 day of August, 2014 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 253/14 24 of 24 Baais Ram Vs. B. S. E. S.