Jammu & Kashmir High Court
Sagar Chand And Anr. vs State Of J. & K. And Anr. on 26 February, 1999
Equivalent citations: 2001ACJ420, AIR1999J&K154, AIR 1999 JAMMU AND KASHMIR 154
ORDER O.P. Sharma, J.
1. This petition has been filed by the unfortunate parents whose school going children aged 7 and 11 were electrocuted in most tragic circumstances on the fateful day of Sept. 24, 1995 in village Dhamlar Tehsil Billawar. The tragedy struck the village in the morning when the children were passing through the paddy field on their way to take bath. In the first instance, Puja, daughter of petitioner No. 1, was trapped by overhanging 11 KV electric live wire which was nearly three feet high from the ground and charred to death. Jatinder Singh, her cousin who because of tender age failed to apprehend the danger got electrocuted while trying to help his sister from escaping death.
2. Both the children, it is admitted, died of electric burns, as per the autopsy reports. It is also not disputed that both the victims were students of 1st and 5th classes of Central Primary School, Dhamlar.
The grievance of the petitioners is that the electric line had been damaged and while repairing the same on 17-9-1995, the Department while leaving the line incomplete left the wire hanging about three feet above the ground level. The work remained un attended until the tragedy occurred. This, according to them, was criminal negligence on the part of the power Development Department for which the respondent-State is liable to pay compensation to the petitioners at the rate of Rs. ten lacs each for causing death of the children in a manner that their parents are likely to suffer from tremor throughout their lives.
3. It is admitted on behalf of the respondent-State that 11 KV line is feeding village Dhamlar. It is also admitted that on 17-9-1995 a portion of this electric line was under repairs, it is also admitted that the conductor of the line was so loose that it was hardly three feet above the ground level, the restoration to its original position required more labour force than available at that time, but, it is also admitted, that this work was not attended for the next few days because of the illness of the line-man concerned. The accident, however occurred because some unauthorised persons had switched on this portion of the 11 KV line which had been disconnected. So the cause of accident, according to the respondents, is unauthorised commissioning of the line by unknown persons.
4. Now the question involved is, whether illness of the lineman could be a ground to leave the repair work unattended for about five days without ensuring that no person other than the line-man of the area or a duly authorised persons of the Department could switch on the line which could prove fatal as it did?
On the admitted facts of the case, there is no escape from the conclusion that both, the children were electrocuted because of the criminal negligence of the Line-man of the area. In case the line-man was sick it was for the Department concerned to make alternative arrangement. So the failure of the Department to make alternative arrangement is further prove of the fact that the immediate officers to whom the line-man was subordinate did not act with promptitude and failed to take care and caution as expected of a reasonable person in the similar circumstances. No reasonable person could be expected to leave a sub-station manned by a Line-man unattended so as to allow anybody to switch on the power when part of the line was not only damaged but left in such a manner that its conductor was almost touching the ground. Assuming that the line was commissioned by an unauthorised person, as pleaded, it could lead to casualties, both human as well as live-stock because the line passes through open paddy fields of the village and any unsuspecting person may come in contact with the overhanging conductor. Infant children cannot be attributed the knowledge that coming into contact with such an object is not only dangerous, but fatal. Thus, the failure of the Line-man and the Department not to complete the repair work which admittedly had already commenced and leaving it unattended for so many days, is a case of gross negligence. Why in the absence of Line-man the work was not completed for so many days is not explained. It appears, the authorities ignored the danger of leaving an over-hanging conductor without ensuring that in the absence of line-man no one should switch on the line. The officials concerned, it appears, took every thing for granted because of which two budding children lost their lives leaving behind the grieving parents. Such gross negligence on the part of the officials concerned cannot be justified on any ground whatsoever. It is a case where the Line-man of the area and his immediate officers intended the consequence by their negligence. Negligence is defined as a breach of the duty caused by the omission to do something which a reasonable man, guided by those considerations which regulate the conduct of human affairs would do, or doing something which a prudent and a reasonable man would do. Actionable negligence consists in the neglect of the use of the ordinary care or skill towards a person to whom the defendant owes duty of observing ordinary care by which neglect the plaintiff has suffered injury to his person or property. In the instant case, the petitioners have suffered injuries because of the negligence of the line-man of the area who failed to take ordinary care by ensuring that the line under repairs did not remain unattended. According to Winfield." negligence as a tort is the breach of a duty to take care which results in damage, undesired by the defendant to the plaintiff. This definition involves three constituents of negligence:
(i) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty; (ii) breach of the said duty; and (iii) consequential damage. All these constituents are present in the present case because it was the duty of the Line-man to maintain the electric supply. It was also his duty that in case of any damage to the line, the same should be repaired. Consequently, it follows that when the conductor was so loose as only three feet above the ground, he should have ensured that electric supply is not put on till the conductor is restored to its proper position. Since he left the station unattended, it was the breach of a duty he owes to the people of the locality of the unsuspecting passers-by through the open field where the conductor was hanging. This carelessness on the part of the Line-man to take care has caused the death of two innocent children of the petitioners. It is thus a case where maxim res-ipsa-loquitur applies because the circumstances constituting the accident proclaim the negligence of the Department. The electrocution of the two children is an accident of a kind which does not happen in the ordinary course of things. In such a case once the accident is admitted, as in this case, the respondent cannot escape the liability, as observed in Padma Behari Lal v. Orissa State Electricity Board, AIR 1992 Orissa 68, which reads as under :--
"................The rule of evidence accepted by all courts of law put the onus on the respondent to prove that the accident was not on account of negligence on its part where the circumstance leading to an accident is such that it is improbable that it would have occurred without the negligence of the respondent. The aforesaid rule of evidence is commonly known as "res ipsa loquitur". The said maxim applies in action for negligence in which the accident speaks for itself. In such cases, the claimant is not required to allege and prove any specific act or omission on the part of the respondent. If he proves the accident and the attending circumstances so as to make the aforesaid maxim applicable, it would be then for the respondent to establish that the accident happened due to some cause other than his/its negligence. The petitioner's son in this case was moving on a bicycle on the public road. His movement on the road on a bicycle was not the cause of his death. His death was due to electrocution having come in contact with the live electric wire. The electric wires have been carried supported by the electric poles, the maintenance of which is admittedly the duty of the Electricity Board. Any live wire getting detached from the pole is likely to cause loss of life. The responsibility of the Electricity Board is, therefore, all the more greater for its maintenance by replacement of wire, checking of the points where the wire has been joined or fixed to the pole and to take all precautions to use materials which would stand a stormy weather......."
In view of this, it is clear that the Line-man was negligent and since the conclusion as inescapable that since he was an employee of the respondent, the State is vicariously liable for his negligence.
5. Now the question is what should be the quantum of compensation payable towards the petitioner. The determination of the quantum of compensation would evidently depend upon various factors including the age of the deceased at the time of accident, the earning capacity and the contribution he was making to the family of his income, if any. These facts can be established only in a civil suit which in fact is the only remedy available under law, except where the facts are admitted. However, the age of both the victims in this case being only 7 and 11, the question of income or contribution to the family does not arise. Still the question remains, what should be the amount of compensation? The minimum amount of compensation on account of no fault liability under Section 140 of the Motor Vehicles Act, 1988 in case of death irrespective of the age is Rs. fifty thousand. This should provide enough guide to determine the amount which is reasonable. Considering the age of the children who lost their lives, the petitioners are held to be entitled to an amount of Rs. 75,000/- and Rs. 60,000/- for the untimely death of Jatinder Singh and Puja respectively. This amount shall be paid with 12% annual interest from the date of this order. No costs.