Jammu & Kashmir High Court
Shiv Kumar (Minor Age vs State Of Jammu And Kashmir on 30 December, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 15.12.2023
Pronounced on: 30.12.2023
OWP No. 2451/2018
1. Shiv Kumar (Minor Age 11 .....Appellant(s)/Petitioner(s)
years)
S/O Bodh Raj
R/O Dai Chack Tehsil Marh
District Jammu
Through: Mr. Manuj Mahajan, Advocate.
Vs
1. State of Jammu and Kashmir ..... Respondent(s)
Th. Commissioner/Secretary, Power
Development Department.
2. Development Commissioner (Power)
Government of Jammu and Kashmir,
Janipur, Jammu
3. Chief Engineer,
Power Development Department,
Jammu.
4. Executive Engineer,
Maintenance and Rural Electric Power
Development Department Division III
Domana Jammu
Through: Mr. Raman Sharma, AAG.
Ms. Chetna Manhas, Advocate vice
Mr. Amit Gupta, AAG.
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The petitioner, who is minor of 11 years of age, has filed the present petition through his father for grant of compensation for an amount of Rs. 80 lacs on account of 100% permanent disability suffered by the 2 OWP No. 2451/2018 petitioner because of sheer negligence of the respondents in maintenance of the High Tension electric wires.
2. It is stated that on 07.08.2017 the petitioner had gone to the house of his uncle situated at Bhadore. At about 10.30 P.M, the petitioner went to the roof of the house of his uncle and suddenly came into contact with the High Tension wire, due to which, the petitioner got electrocuted. It is stated that the incident of electrocution took place due to negligence and carelessness on part of the respondents in maintaining the electric wires as live electric wire/service line was having short circuit and due to darkness the petitioner came into contact with the live wire due to which the petitioner suffered serious injuries to both of his upper limbs. It is further stated that during the treatment the petitioner developed gangrenous changes in both the upper limbs and other parts and due to severe infection both the upper limbs of the petitioner had to be amputated. It is further stated that the petitioner was a school going student and the petitioner has become disabled for the rest of his life at such a tender age of 11-12 years. The petitioner has suffered 100 percent disability which is substantiated by the certificate No. CMO/J/DB/29921 dated 21.04.2018 issued by the Chief Medical Officer, Health and Family Welfare Jammu. The petitioner has sought the compensation as he has become disabled for rest of his life and all his dreams and goals have been shattered. The petitioner has stated that his life has become a living hell as he would remain a burden for rest of his life upon others because of this incident. It is further stated that the petitioner was studying in class 6 th at the time of 3 OWP No. 2451/2018 electrocution but due to the permanent disablement of both his upper limbs the petitioner has been forced to discontinue his studies. The petitioner has further submitted that he cannot lead a normal life like other children of his age. He is facing difficulty in performing his daily chores.
3. The petitioner has placed on record the FIR, the medical record, the disability certificate and the notice issued by his counsel demanding compensation from the respondents.
4. Response stands filed by the respondents stating therein that the disputed questions of facts cannot be gone into by the Court while exercising the writ jurisdiction. It is further stated that as per the intimation of the concerned Assistant Executive Engineer, Sub Division-I, the incident took place on 07.08.2017 at 10.30 A.M. when the petitioner was flying kite on the roof of the temple at Bhadore and the kite got trapped in HT line of the TP-1 Feeder, however, it is submitted that there is no negligence on part of the respondents. The respondents have stated that they are maintaining the 11 KV lines and also the branch cutting is done properly. It is further averred that it was only after two months the line man of the area was informed by the local residents of the said area that a boy got an electric shock while he was flying kite on the roof of temple.
5. Heard and perused the record.
6. The first contention raised by the respondents is that the electrocution incident took place because the petitioner was flying kite and the kite got trapped in HT line. Except this bald assertion, there is nothing on record to substantiate that the petitioner was flying kite as a result of which he 4 OWP No. 2451/2018 met with an accident. This assumes significance as the contention of the respondents is that the kite got trapped in HT Line where as the respondents are absolutely silent as to whether the boy went to bring down the wires or the wires came down. In fact the respondents have filed the response on the basis of hearsay as after two months of the incident, their lineman heard from the local residents that a boy got electric shock while he was flying kite on the roof of the temple. Rather the petitioner has placed on record the FIR dated 02.09.2017 registered at the instance of the father of the petitioner. Even in the discharge and follow-up card, the cause of the accident has been mentioned as "fall with electric burns of both upper limbs". This court is unable to comprehend a situation that the child would suffer electric shock as a result of kite flying and even if it is assumed to be true still it would mean that the electric wires were not properly placed/laid at the safe distance from the normal adult human being. The photograph of the child with amputated arms has been placed on record and this court finds that he is not of an extraordinary height. This Court in „Sham Dev Singh v. State of Jammu and Kashmir & Ors' bearing OWP No. 2248/2018 decided on 22.12.2023 has held as under:
"1.The hands of the poor villager are his earning tools and if they are lost in an accident/incident, his earning capacity would be reduced to zero and he would either starve or turn beggar, if not supported by the family or the State.
XX XX XX
10. This Court can take judicial notice of the height of the child of five years and can safely assume the height of the wires from the roof of the house of the petitioner. If the child of 5 years while playing with the iron rod could touch the wires, then it can be safely assumed that the wires were not beyond the reach 5 OWP No. 2451/2018 of normal adult human being. The respondent Nos. 3&4 have admitted the averments made in para-3 of the writ petition wherein the petitioner has referred to the application submitted by one Nazir Ahmed with respondent No.3 in respect of removal of wires and the endorsement made by the respondent No.3 directing Executive Engineer concerned to take necessary action for the safety of the people. Otherwise also, the respondent-Power Development Department cannot impute any negligence to the minor child. Even under Indian Penal Code, the child below seven years of age is incapable of committing any crime, which is recognition of principle of 'Doli Incapax' (Section 82 I.P.C). Likewise, the principle of 'Violenti non-fit Injuria' is not applicable to the children. Under Indian Contract Act also, an agreement with minor is void. When the law has granted absolute immunity to the minor in respect of civil and criminal liability, the respondent-Power Development Department cannot raise the plea of negligence on the part of the minor to deny their liability to compensate the petitioner. The photographs placed on record itself reflect the short height of the child. Therefore, this court has not even an iota of doubt in its mind that it was because of the negligence of the Power Development Department that the petitioner had suffered electric shock resulting into amputation of both of his arms, which is established by disability certificate (Page-39 to the writ petition) placed on record by the petitioner demonstrating that he has suffered 100% permanent disability."
7. Though, the age of the child in the present case is 11 years, whereas in Sham Dev Singh‟s case (supra), the age of the child was 5 years but the immunity and the privileges granted to the petitioner shall remain same except in respect of provisions contained in Section 83 of IPC. As such, taking into consideration the documentary evidence placed on record by the petitioner, this Court has no hesitation to hold that the incident occurred because of the negligence of the respondents in maintaining the electric lines/wires.
8. Now, the only question that is required to be examined is the quantum of compensation. In Sham Dev Singh's case (supra), this Court granted the compensation to the minor child-victim of electrocution, by observing as under:
6OWP No. 2451/2018
"12.So far as contention of the respondents that had there been any negligence on the part of the respondent-department, the case of the petitioner would have been dealt in accordance with the policy for grant of compensation for electrocution is concerned, this Court has already observed that the grant of ex-gratia relief in terms of Government orders issued from time to time will not come in the way of the Courts to grant compensation in appropriate cases. In this context, it would be relevant to take note the relevant portion of the judgment passed by this Court in SWP No. 504/2014 titled, Ravi Kumar vs. State of J&K and ors. decided on 02.12.2023, which is reproduced as under:
" 7. x x x x x The respondents have come up with a policy for grant of ex-gratia relief to the departmental and non-departmental persons, who are killed or incapacitated due to electrocution caused by the negligence of the Power Development Department. The Government Order dated 24.11.2011 provides for grant of ex-gratia relief of Rs. 01 lac in case of total disability and Rs. 30,000/ in case of partial disability, whereas the Government order dated 24.10.2019 provides for grant of ex-gratia relief of Rs. 7.5 lacs in case of total disability and Rs. 2.00 lacs in case of partial disability. The Government order dated 24.10.2019 provides that the payment shall be subject to condition that the relief granted by the Government under the Workmen‟s Compensation Act, shall be adjusted while making payment of the Ex-gratia relief. The term „ex-gratia‟ means out of grace or gratuitous. The ex-gratia relief in fact is the amount which the Government has volunteered to pay to the victims of electrocution due to negligence of the Power Development Department. The policy for grant of ex-gratia relief cannot come in the way of Courts to compensate the victims for the electrocution in an appropriate manner. x x x x x x".
13. The petitioner was 5 years of the age at the time of incident, which took place in the year 2017. In "Kajal v. Jagdish Chand"
(2020) 4 SCC 413, the Hon‟ble Supreme Court considered the notional income of a girl of 12 years of the age, on the basis of minimum wages payable to skilled workman. The relevant para is extracted as under:
"Loss of earnings
20. Both the courts below have held that since the girl was a young child of 12 years only notional income of Rs 15,000 p.a. can be taken into consideration. We do not think this is a proper way of assessing the future loss of income. This young girl after studying could have worked and would have earned much more than Rs 15,000 p.a. Each case has to be decided on its own evidence but taking notional income to be Rs 15,000 p.a. is not at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs 4846 per month. In our opinion, this would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future pros'pects, it works to be Rs 6784.40 per month i.e. 81,412.80 p.a. Applying the multiplier of 18, it works out to Rs 14,65,430.40, which is rounded off to Rs 14,66,000."7 OWP No. 2451/2018
14.The same principle has been applied in "Ayush v. Reliance General Insurance Co. Ltd." (2022) 7 SCC 738, as well, where the claimant was 5 years of age."
15.In this case, the incident took place on 25.02.2017. The Labour and Employment Department, Government of J&K has issued Notification on 26.10.2017, providing the minimum wages of Rs. 225.00, 350.00, 400.00 and 325.00 for Un-skilled, Skilled, Highly Skilled and Administrative/Ministerial/Accounts Staff. Though this notification came into force in November 2017, but the proposal was mooted for enhancement of the minimum wages on 23.02.2017. The minimum wages prescribed by the Notification (supra) can be relied upon by this Court for the determination of compensation. The wages payable to skilled worker under notification (supra) is Rs. 350.00 per day and as such, the monthly wages would be Rs. 10,500.00. The monthly income is required to be enhanced by 40% taking into consideration the prospects of enhancement of earning in future, in terms of judgment of the Supreme Court in "National Insurance Co. ltd. vs. Pranay Sethi and anr" (2017) 16 SCC 680. Thus, the monthly income would be Rs. 14,700.00 per month. The multiplier applicable would be 18. Thus the total loss of future earnings would be Rs. 31,75,200/. In view of the injuries suffered by the petitioner, as he has lost both of his arms he would need an attendant for rest of his life and also the petitioner has suffered loss of marriage prospects.
16.In Ayush v. Reliance General Insurance Co. Ltd. (supra), the Hon‟ble Supreme Court of India granted the compensation to the accident victim of 5 years, who suffered injuries on 21.09.2010 when the monthly wages payable to a skilled worker was Rs. 3700/-, under the following heads:
Head Amount
A. Loss of future earnings due to the permanent disability R 11,18,880
for life (3700 + 1480 = 5180) × 12 × 18 s
B. Medical expenses Rs 5,74,000
C. Future medical expenses i.e. towards purchase of 2 Rs 10,00,000
devices
D. Pain, suffering and loss of amenities Rs 10,00,000
E. Loss of marriage prospects Rs 3,00,000
F. One attendant charges (3700×12×18) = 7,99,200 Rs 8,00,000
rounded off
G. Conveyance charges Rs 2,00,000
Total Rs 49,92,880
Rounded off Rs 49,93,000
17.In Mohd. Sabeer v. U.P. SRTC, 2022 SCC OnLine SC 1701, the Hon‟ble Supreme Court, besides under other heads, granted an amount of Rs. 12,80,000/ as compensation for the purchase and maintenance of prosthetic leg, but in the present case due to absence of evidence as to the cost of prosthetic limbs, this Court deems it proper to grant an amount of Rs. 10.00 lacs as cost and maintenance of two prosthetic limbs."
8OWP No. 2451/2018
18.Accordingly, the compensation to which the petitioner is held entitled to is assessed as under:-
1) Loss of future earnings = Rs.31,75,200/-
2) Loss of Amenities
and Pain and suffering = Rs.10,00,000/
3) Loss of marriage prospect= Rs. 3,00,000/-
4) Cost & Maintenance Artificial limb = Rs.10,00,000/-
5) Attendant‟s Expenses= Rs. 5,00,000/
Total = Rs.59,75,200/"
9. On the same analogy, the petitioner is held entitled to the compensation under the following heads:
1) Loss of future earnings = Rs.31,75,200/-
2) Loss of Amenities
and Pain and suffering = Rs.10,00,000/
3) Loss of marriage prospect= Rs. 3,00,000/-
4) Cost & Maintenance Artificial limb = Rs.10,00,000/-
5) Attendant‟s Expenses= Rs. 5,00,000/
Total = Rs.59,75,200/
10. In view of above, the respondents are directed to pay an amount of Rs.
59,75,200/- (Rupees Fifty Nine lacs and Seventy Five Thousand and Two hundred only) to the petitioner alongwith interest @ 6% per annum, except upon the component of future earnings and attendant‟s expenses, from the date of filing of the petition till its realization. Since the petitioner is minor, the amount of Rs 10,00,000/- would be paid to the father of the petitioner being the natural guardian. The rest of the amount would be invested in one or more Fixed Deposits Receipts so as to attract the maximum rate of interest. The interest amount shall be payable to the guardian of the petitioner every month. In the event, the father of the petitioner requires any amount in respect of medical expenses or 9 OWP No. 2451/2018 otherwise for the education of the petitioner, during the minority of the petitioner, he shall be at liberty to approach this Court.
11. The writ petition is disposed of in the above terms.
(RAJNESH OSWAL) JUDGE Jammu 30.12.2023 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No.